PART I: THE BASICS

Chapter 1: An Introduction to
International Law
Law has been an integral element in every form of society, since the
inception of mankind. It has been a boundary of sorts, confining human
behavior within acceptable limits, and any transgression therein was always
frowned upon, penalized and to the best possible extent, deterred. Evolution
of man as a social animal depicted a phased and a gradual expanse his
interactional sphere, from the singular microcosm of the family, to the
present day multi-layered scheme of global relations. The world seems to
shrink progressively, and relations are beginning to be forged, not just
amidst individuals, but governments, organizations and the like. As each
layer of the socio-political hierarchy establishes itself, it becomes all the
more necessary for a legal framework to govern each, for it is the need for
stability at each level that drives the pivotal role that law plays.
2

Law binds the individual units of the community together, by channelizing

individual values and norms into recognized mores. On the positive side,
Law is permissive, in that it enables the enforcement of rights, the
obligatory fulfillment of duties; and is also coercive, in that it works to
penalize transgression and violation. In a nutshell, Law can be easily
construed as a body of norms and rules that regulate human behavior, which,
in the process, reveals the intricacies of the social set up, with all its
inherent ramifications and maladjustments.
Law has no limit for what it regulates, given that there are Laws governing
the actions of humans, the actions of corporations, the actions of
organizations, and the actions of the government itself. It is in the last
category, that International Law finds its place, while the preceding three
are governed by what is popularly known as Municipal Law, or Domestic
Law. The primary difference between International Law and the Laws
governing the other three realms, is that International Law caters to states,
and perhaps regional organizations, while all else govern the minor entities
that come within the states.
International Law itself is broadly segregated into Private and Public
International Law. Private international law, alternatively termed as Conflict
of Laws, refers to the conflict between the laws within particular states with
their own legal systems, in the event of the obtrusion of foreign elements that
eventually leads to questions in pertinence to the applicability of a foreign
law, or the role of foreign courts. The latter, oftentimes called just
International Law, is the supranational law governing the relations of states
in their interactions with one another, and the primary concern of this book.
The aim of Public International Law is to monitor the behaviour of states in
the international sphere.[1] Where there is a community of states, the
maintenance of law and order becomes essential. A state will, as a general
rule, do its best to act within the ambit of the framework of rules which
make up international law. On the occurrence of any transgression or
violation of the general principles of peaceful and cooperative cohabitation
between states, automatically evokes the disapproval of the fellow states in
the community. Such disapproval could manifest in the forms of a tag of bad
reputation, or in the form of much more severe consequences, such as
sanctions and war.
Public international law covers a plethora of aspects that come to be, in the
course of relations between states. Warfare, space deployments, sea routes
and trade are few of the myriads of aspects covered. Public international
law is bifurcated into general, and regional. The former refers to the set of
3

rules that govern the larger community of states, not confined to a specific
region. Regional International Law refers to the legal framework dealing
with the workings of a specified set of states, bound either by cartographic
and geographical links, or ideological perspectives.
A close perusal of contemporary International Law would reveal that it is
going through a rapid and profound transformation to keep pace with the
remarkable changes in the world. It has consistently been expanding its
horizons both, in terms of its subjects and orientation, consequently resulting
in a marked change in its character. It is true that the structure of
international legal system is quite flexible, and this is essentially in order to
be receptive to socio-political transition for its very survival.
Definitions
Primarily, as has already been seen, International Law or the Law of
Nations functions as the lubricant to cushion the frictional movements
between states in the anarchical set up. Given that the international arena is
one of an anarchical nature, all states are sovereign, and maintain that each
is equal to the other. This equality and sovereignty warrant that there cannot
be one above them all, or one single state being the leader. As a natural
corollary, International Law, is the law between these nations, and not the
law above these nations. This is the legitimate reason behind the usage of
the term International Law.[2] Simply put, it refers to the law that governs
states. A cursory perusal of the working definitions of International Law
indicates the different dimensions of the continually evolving subject.
Scholars for years together, have aspired to channelize the varied practices,
conventions and legal precedents into a compact legal system, beginning
therein, with a definition of the term.
In the words of Oppenheim, one the greatest exponents in the field, the Law
of Nations, or International Law, as it is called, is the name for the body
of customary and conventional rules, which are considered binding by
civilized states in their intercourse with each other.[3] The crux of this
definition lies in the fact that international law is the law that governs the
conduct of states in the realm of international anarchy. While the definition
concentrates on establishing that it is the customary and conventional rules
that make up international law, it fails to take note the value and worth of
juristic opinion, and simple state practice. The qualification of states as
civilized, to comfortably fit the bill as one following international law, is a
subjective notion. What defines civilized is not elaborated upon, and in the
present day and age, there are several states that indulge in practices not
acceptable to the other states, and these states are as equally steeped and
4

involved in the workings of international law, as are the other states that
frown upon these practices. Furthermore, the definition seems to constrict
the applicability of International Law only to states, while present day
practice depicts that international organizations are also included within the
ambit of international law. Lastly, the construal of international law as a
body of rules, is questionable on many accounts. International law is a
dynamic field, and is continuously reinterpreted and reshaped in the very
process of its application by authoritative decision makers, nationally and
internationally.[4]
The ninth edition of Oppenheims book, edited by Sir Robert Jennings and
Sir Arthur Watts, has a revised version of the earlier definition, which
holds that 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 relation of States, but States are not the only
subjects of International Law. International Organizations, and to some
extent, also individuals maybe subjects of rights conferred and duties
imposed by international law. While there has been a dispensing away
with, of the civilized tag, and the inclusion of the other subjects of
international law, the definition still seems to lag behind in that the
confinement of the field into a body of rules and the non-inclusion of all
elements comprising the law. Another question that arises is with regard to
the extent to which states, individuals and international organizations are
bound by these rules. Several aspects go into the determination of the
binding force, and many a time, International Law has been labeled with the
moniker of a soft law.[5]
Much has been said about the importance of Judicial Precedents and
observations of judges in the course of the active interpretation of the law.
In this regard, two important cases evinced that the decisions passed by
different forums included the definitive requirement for international law. In
Queen v. Keyn,[6] a decision that preceded Oppenheims definition, held
that International Law refers to the collection of usages which civilized
states have agreed to observe in their dealings with one another. The
famous Lotus Case,[7] had the Permanent Court of International Justice
define International Law, as that which governs relations between
independent states. The court went on to hold that 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 coexisting independent communities or with a view to the achievement of
5

common aims. Restriction upon the independence of states therefore

cannot be presumed. It must be remembered that the genre of definitions
provided in a judicial opinion are confined to the requirements of the case
in question, and hence, there is neither need for, nor should there be an
expectation for, a wider definition. Both questions involved the liability of
states concerned in the event of a collision on the high seas, between
vessels owned by different states. The definitive tangent observed in both
cases was to induce the wrongdoer state to atone for its misdeeds, and to
pay for the loss caused. The use of language sufficient to induce the states to
do the needful, in the interest of justice and restoration of peace in the
international comity underlies the definitions delivered herein.
In the words of J.G.Starke, International Law is that body of law which is
composed for its greater part of principles and rules of conduct which
states feel themselves bound to observe, and therefore, do commonly
observe in their relations with each other, and includes also: (a) The rules
of law relating to the functioning of international institutions or
organizations, their relations with each other, and their relations with
States and individuals, and (b) Certain rules of law relating to individuals
and non-state entities so far as the rights or duties of such individuals are
the concern of the international community.[8] This definition, though a
little more on the recent side of the legal research spectrum, seems to ignore
the role of the newer aspects that contribute to international law in making it
what it is. The important role that customary practice, conventions and
treaties, juristic opinions and precedents play in forming the body of
international law has not been specifically enumerated in the definition.
However, this definition has included international organizations,
individuals and non-state entities, as subjects of international law, which
bodes well in the light of the most recent developments.
A working definition of International Law would be hard to frame, given the
nature and dynamism that the subject has been accorded. What seems right at
one point of time seems grossly erroneous at another, and what seems
contextually right loses ground in the big picture.
Origin and Development of International Law- A brief
historical outline
In many ways than one, International Law can be construed as a product of
the experience of civilized nations in the world, and their well orchestrated
interactions with one another. The actual point marking the origin and
milestones marking the development of International Law has been a subject
of much consternation among scholars world over.[9] While a couple of
6

authors prefer to examine the relations and treaties governing polities from
as old as 3000 BC, encompassing the pre-classical antiquity in the Near
East, Ancient Greece, Persia and the Romano Hellenistic era,[10] the
generally prevailing view where International Law is concerned, is that it
originated in Europe, emerging during the period after the Peace of
Westphalia in 1648, that put an end to the Thirty Years War.
The Early Eras
While the modern international system can be traced back some 400 years,
certain basic concepts can be discerned in political relationships, about a
thousand years ago.[11] Contributions from different quarters have evidently
been rife in the pre-1648 era. The Greek Civilization, with the emergence of
a polity of sorts, comprising city-states, warranted a miniature model of
todays actual international legal set up, with definitive rules governing the
inter-relationships of these city-states. Dispute resolution through peaceful
means as an alternative to war, prior declaration before actually
commencing war, the exchange of prisoners of war and mutual-cooperation
of sovereign states propelled the Greek system of unity in the midst of an
anarchical set up. Greece was steeped in its virtuous pursuit of Natural
Law- a branch formulated by the Stoic philosophers of the third century BC,
and their theory was that it constituted a body of rules of universal
relevance. Such rules were construed to be rational and logical in nature, on
account of originating from human intelligence. The Romans, on the other
hand, hinged largely upon warfare. They construed the existence of two
kinds of war, just and unjust war. Just wars could be waged on four grounds,
namely, where there was an attack on Roman Territory, disregard or
violation of the privileges of ambassadors, contravention of treaties, and the
assistance to enemy states by friendly countries. Any other modality was
construed antithetical to the requisite yardstick of justice. Treaties were
classified into three kinds, Treaties of Friendship, Alliance and Hospitality.
The Romans had two sets of law, jus civile, or the law that governed its
own people, and jus gentium, or the law that governed foreigners. With
time, the latter replaced the former in entirety, until the former ceased to
exist altogether. The Romans followed the Greek concept of natural law.
The classical rues of Roman Law were collated in the Corpus Juris Civilis,
a compilation of legal material by a series of Byzantine Philosophers,
completed in 534 AD.[12]
The role of Israel is also noteworthy. A universal ethical stance coupled
with rules relating to warfare was handed down to other peoples and
religions and the demand for justice and a fair system of law founded upon
strict morality permeated the thought and conduct of subsequent generations.
7

[13] Prophet Isaiah declared that sworn agreements, even where made with
the enemy, have to be performed.[14] It was believed that the foundationstone of mans existence was peace, and not power.
In Africa, the Egyptian civilization flourished, under the auspices of fertile
endowments beside the river Nile. Rameses II of Egypt, and the King of the
Hittites signed a treaty, for the establishment of eternal peace and
brotherhood.[15]
Following a similar pattern, were the developments in Asia. The
Mesopotamian civilization, chaperoned by the crux of Hammurabis laws,
grew to be similar to the Greek set up, involving city-states. The rulers of
two cities in the Mesopotamian civilization, namely, Lagash and Umma,
signed a treaty inscribed on a stone block, in relation to the definition of a
boundary.[16] The Indus Valley civilization and all subsequent Indian
political regimes until the sixteenth century, had their own modality of
procedure governing international trade and international relations. There
was an extensive maritime trade network operating between the erstwhile
Indus Valley and Mesopotamian civilizations, as early as the middle of the
Indus Valley Civilization, with much commerce being handled by merchants
from Dilmun.[17] The Chinese civilization had a regional-tributary system
in place, and though fragmented, it remained in place for a considerable
length of time. Hindus, both during and after the Vedic Age, in the Indian
subcontinent, displayed immense respect for International Relations. Ample
generosity was seen to occur, and every activity was measured against the
yardstick of morality. During the Buddhist age, and its propagation phases
much later, foreigners were invited to India, or rather the empire that India
was, back then, for economic and educational activities. Hieuen Tsang and
Fa Hien were only two of the myriads of the scholars from outside India,
who made a foray into the Indian educational realm, in erstwhile
universities of learning, such as Nalanda and Takshila.
Such conduct would be of frugal importance if there was no code governing
it, and thus, was in order, an international legal system, neatly in place,
governing the entire realm of their relations. Islam and its influences in the
Asian territory cannot be ignored. The primary principle underlying Islamic
international relations, was their hostility towards non-Muslim countries,
and the concept of unity, or Dar al-Islam, between Muslim countries.
Religion was their catchword, and those that were the peoples of the book,
namely, the Jews and the Christians, were given better treatment as opposed
to non-believers, though they were construed lower in position to the
Muslims. They were steeped in respect for the understanding of the
8

distinction between combatants and non-combatants during warfare, and

understood the importance of honoring their word, by fulfilling their treaty
obligations, with the aim of preserving their sanctity.[18] With the end of
conquest, Muslim states began building strong relations with non-Muslim
states. Diplomacy law was largely propped on the rules of hospitality, and
was named aman.[19] Prisoners of war were left to the Imam, who would
decide their fate.
The Middle Ages
The Middle Ages were characterized by the authority of the organized
Church and the comprehensive structure of power that it commanded.[20]
Europe was steeped in religious development, and ecclesiastical laws were
the norm for all, irrespective of other regional or personal affiliations. The
entire period is filled with instances of turmoil between the Church and the
Polity. Ultimately, the Church won the conflicts, although, in reality, this
victory over secularism was largely short-lived. Religion may have been a
unifying factor, but political differences managed to spill over nevertheless.
During this era, the authority of the Holy Roman Empire and the
supranational character of canonical law was of utmost importance.[21]
Nevertheless, commercial and maritime law developed speedily, and
England established the Law Merchant, a code of rules covering foreign
traders, and this was declared to be of universal application.[22] The
European states began evolving mercantile courts to settle disputes between
tradesmen at various fairs. This paved the way for an embryonic
international trade law.[23] Maritime customs evolved. Founded upon the
Rhodian Seal Law, a Byzantine work, many of whose rules were enshrined
in the Rolls of Oleron in the twelfth century, and other maritime textbooks, a
series of commonly applied customs relating to the sea permeated the naval
powers of the Atlantic and Mediterranean coasts.[24]
Soon after, intellectual development took Europe by storm, in the form of the
Renaissance. Science, humanities and individual thinking were the new
order of the day. There were open challenges to Papacy, with advanced
exposition of knowledge that was otherwise suppressed until then. Secret
societies emerged, in an attempt to propagate knowledge. The world began
to realize that the earth was not flat, that there could be flying objects in the
future, and earned some of the worlds best literature and best art it could
possibly imagine. Printing became a reality, thereby allowing quicker
dissemination of information. The Byzantine Empire collapsed with the fall
of Constantinople, after which the Turkish armies in 1453, drove many a
Greek scholar to seek sanctuary in Italy. It was at this point, that individual
9

nation-states such as England, France and Spain, specifically, came to fore

as developed states steeped in territoriality. The Italian city-states sought to
break away from Papacy, and forayed into secularism. It was from these
struggles that the major staples of modern international life, such as,
diplomacy, statesmanship, the theory of balance of power and the idea of
community of states evolved.[25]
The creation of independent states, states that believed in maintaining their
sovereignty in their interactions with one another is where the actual roots
of International Law are found. The Renaissance, did, in effect, succeed in
building a strong political framework for the erstwhile futuristic system of
International Law. The Reformation and the series of religious wars did
much to add to the power of the states. The continental system, thus paved
the way for the state-based anarchical system.

Subsequent Development- From the Treaty of Westphalia to The

Modern Ages
The subsequent development of International Law is also subject to different
views. In Grewes words, there were three distinct systems of International
Law after the sixteenth century, marked by the interests, ideologies and
policies characteristic of the period in question, namely, the International
Legal Orders of the Spanish Age (1494-1648), the French Age (1648-1815)
and of the English Age (1815-1919).[26] On another note, is the division of
the periods into 1648 to 1815, 1815 to the First World War, the interim
period between both wars, and the Second World War until today, which
holds its own as good classification.[27]
For the purposes of this analysis, the periods of reference shall be the
Classical System of International Law, (1648-1919), and the Modern or
New System of International Law, evolving from the span of time
commencing after the First World War.
The Classical system of International law involved the recognition of the
state as the only subject of international law. States were construed as
equal, and sovereign, in a realm of international anarchy. Although treaties
and leagues existed in the ancient and medieval systems, they did not begin
to assume the prominent part in the political history of the world, which they
have since attained, and now occupy, until the middle of the seventeenth
century, and shortly after Hugo Grotius, whose work, De Jure Belli Ac
Pacis is considered one of the earliest points to mark the evolution of
International Law.[28] At this point of time in history, states readily
10

accepted the untrammeled right to wage wars and to enforce claims, in the
pursuit of protecting its own domestic, national interests. This period
evinced colonization by leaps and bounds, by greater powers in the
European set up. The British had active settlements in several portions of
Asia and Africa, while French and Portuguese colonization followed suit
closely. Other European States had colonies to their credit, but not to the
large extent that the former possessed. The three centuries succeeding the
Peace Treaty of Westphalia witnessed a grand expanse of interaction
amongst the European powers, and their imposition of their international
legal order upon the remainder of the world. This could be construed as the
general order of things until 1919, with states carrying out wars against one
another in an attempt to secure territories, and then acceding to the other in
the course of Peace Treaties. Peace was restored by either treaties that
divided territories for both warring groups, a successfully completed
conquest, or sometimes, bizarrely, by forging matrimonial relations. An
interesting anecdote that indicates this, was the case of Bombay, in India.
India was under the colonial rule of the British, in some parts, and under the
Portuguese and French, in certain other parts. The Island of Bombay, was
ceded to the British Empire, in 1661. King John V of Portugal presented it
to King Charles II as the dowry of his daughter, Catherine, and Charles then
made it over to the East India Company for a nominal rent of 10 a year.
While this is just one case spelled out in words, a major portion of
international relations were forged between states in a similar manner, if not
entirely the same.
In 1815, the Congress of Vienna was convened, where many rules of
International Law, such as those dealing with international rivers,
classification of diplomatic agents and their duties, were laid down. The
Lieber Code, of 1863, passed by the Congress of the United States of
America sought to govern the conduct of the US forces during the United
States Civil War. This was considered to be the earliest recitation of the
rules and articles of war, as required to be adhered to by civilized nations.
The Declaration of Paris, in 1856 followed suit, dealing with the issues of
naval warfare. This declaration made attacks on undefended ships
punishable, and permitted the sinking of enemy ships or their destruction
during war, only after taking the requisite precautions to save the lives of the
crew. Following this, the Geneva Convention of 1864 was created, in
relation to the Laws of War. The Permanent Court of Arbitration, seeking to
make sure that states would resort to peaceful dispute resolution, as
opposed to brazen warfare, was established in 1899. The hallmarks of the
development of international law are the Hague Conferences of 1899 and
11

1907, which dealt with the importance of peaceful dispute settlement in the
international sphere. These conferences aimed at formulating rules relating
to land and naval warfare. They laid down the duties and rights of neutral
states, and forbade any form of bombardment over undefended people. The
rights and duties of neutral states were elaborately laid down. The Treaty of
Locarno, between France, Germany, Britain and Italy, among other
countries, dealt with boundary disputes, also required states to settle their
disputes peacefully. However, in 1936, Germany refused to follow the
treaty.
The Modern Era
From 1919 onwards, there was a major change in the international anarchy.
The use of force was not so absolutely acceptable anymore, and the
international community was sought to be streamlined better. The First
World War that commenced in 1914 finally came to an end with the signing
of the Treaty of Versailles. The League of Nations was created soon after
the war drew to a close, seeking to call upon nations to be one in their
endeavour of maintaining peaceful relations, and in building a world
community on the strong foundations of peace. War was expected to be a
last resort, and established that any state waging war in violation of the
contents of the Covenant of the League of Nations, would be deemed an
enemy of the whole comity of states. Nevertheless, the League of Nations
did not quite succeed in its noble attempt, given that there were one too
many factors propelling its failure. The foremost cause was that the League
permitted a withdrawal of membership. States took to flouting rules, and to
cover their shortcomings, they would conveniently withdraw their
membership, leaving virtually no room for the maintenance of peace. In the
midst of this, the Kellog-Briand Pact, also called the Paris Pact, was signed
in 1928. The pact sought to require those who were privy to it, to renounce
war as an instrument of their policy for the settlement of disputes. In 1929,
another Geneva Convention was passed, and signed by 47 States of the
erstwhile world order. Rules relating to the treatment of prisoners of war
were laid down, reprisals involving a use of force were prohibited, and the
provision of medical supplies and other facilities to prisoners of war were
also championed. Subsequently, the attacks by Italy on Corfu in 1931, Japan
on Manchuria in 1935, Italy on Ethiopia in 1935, and Russia on Finland in
1939, led to the winding up of the League of Nations. The Disarmament
Conference, convened under the League of Nations, also proved to be a
failure.
The Second World War, a global military conflict lasting from 1939 to
12

1945, ended all attempts to maintain peace. It involved most of the world's
nations, including all of the great powers, organized into two opposing
military alliances named the Allies and the Axis. The actual beginning of the
war dates back to September 1 , 1939, when Poland was invaded by Nazi
Germany. This was followed by declaration of war on Germany, by France
and several countries of the British Empire, and the Commonwealth. As on
the aid date, several countries were already at war, such as Ethiopia and
Italy in the Second-Italo-Abyssinian War, and China and Japan in the
Second Sino-Japanese War.[29] States that were not originally involved
joined the war later in response to events, such as the German invasion of
the Soviet Union and the Japanese attacks on the U.S. Pacific Fleet at Pearl
Harbor and on British overseas colonies, which triggered declarations of
war on Japan by the United States, the British Commonwealth[30] and
Netherlands.[31] The war ended with victory in the Allies hands, and the
politico-social structure of the entire world had completely changed.
With the war coming to a close, the United Nations was formed on October
24 , 1945, marking another milestone in the development of International
Law. The stated aims of the United Nations are facilitating cooperation in
international law, international security, economic development, social
progress, human rights, and the achieving of world peace. The aim was to
replace the League of Nations, to stop wars between countries, and to
provide a platform for dialogue. Despite such a move, there was a mild
spillover of the war into the peaceful period, with the advent of the Cold
War. It was, in essence, the continuing state of political conflict, military
tension, proxy wars, and economic competition after World War II primarily
between the Soviet Union and its satellite states, and the powers of the
Western world, particularly the United States.[32] Although the primary
participants' military forces never officially clashed directly, they expressed
the conflict through military coalitions, strategic conventional force
deployments, extensive aid to states deemed vulnerable, proxy wars,
espionage, propaganda, a nuclear arms race, and economic and
technological competitions, such as the Space Race.[33] Although both
states were, during the World War, allies on the same front, the configuration
of the post-war world allowed room for deviated ideologies and altered
viewpoints from both ends. The Cold War led to the birth of alliances such
as the Eastern Bloc or the Warsaw Pact on the Soviet side, the NATO, on
the American side, and in the middle, the non-aligned movement, depicting
allegiance to neither side. The Berlin Blockade, the Korean War, the Berlin
Crisis of 1961, the Vietnam War, the Cuban Missile Crisis, the Soviet War
in Afghanistan and the Able Archer 83 exercises were the primary incidents
st

th

13

marking the Cold War. The demise of the Cold War came in with the
increase of military and economic pressures on the Soviet, imposed by the
United States. Mikhail Gorbachev, the erstwhile Soviet President,
introduced the liberalizing reforms of Perestroika and Glasnost, meaning
reconstruction and openness. Formally, the Cold War ended after the Soviet
Union collapsed in 1991, thereby leaving the United States as the dominant
military entity, and Russia with a large part of the Soviet Unions nuclear
weaponry.
The UN has remained till date, with an expanding membership. The UN
Charter can be called an International Treaty of sorts. It seeks to regulate the
mutual relations of its members, seeking to encourage the progressive
development of International Law and its codification. The UN has six
principal organs, namely, the General Assembly, the Security Council, the
Secretariat, the Economic and Social Council, the Trusteeship Council and
the International Court of Justice. The UN has, today, attained a sense of
universality, with 192 members having joined the system.
The Nature of International Law
The actual nature of International Law has often been subject to much
debate, given that there are opposing theories as to whether it is, in reality, a
law or not. It has often been touted as a soft law, or sometimes, as a
vanishing point of jurisprudence. Clearly it is one of the only bodies of
law that has no singular document penning all its dimensions on paper, and
instead contains a plethora of sources spanning from customary practice to
treaties and from juristic opinions to judicial decisions. Although a state is
not bound to act in a certain way unless there is a treaty requiring it to do so,
or a customary practice binding them with opinio juris, or the psychological
element that induces a state to believe that a certain genre of behaviour is
considered binding, there are only a couple of instances to such effect in
International Law. All states are not made mandatory signatories to every
treaty, and a custom is an unwritten code or practice that a state is left to
choose to observe and follow. The system of anarchy and equality of states
by according each the right to sovereignty, are one of the major reasons for
International Law to be on a mildly different tangent as opposed to all other
forms of conventional law. International law is not an adversarial system
of law. Many of its rules have evolved from the practice of states and often
these do not stipulate rigid obligations or confer overriding legal rights. The
nature of International Law can be studied in two different ways- the
theoretical approach and the practical approach.
The Theoretical Approach
14

The theoretical approach studies International Law as an academicians

subject, as viewed from the point of view of a juristic scholar. If there is an
acceptable surmise that International Law is a law, notwithstanding the fact
that it is of a different kind as opposed to national legal systems, the
question of where it derives its legal validity, arises. The question as to why
it is a law at all comes next. In answer to these questions, there are four
theories in all, governing the understanding of the nature of International
Law.
The Command Theory
John Austin, the proponent of this theory, considered law to be a series of
commands or orders, issued by a sovereign backed by the threat of sanctions
in the event of any disobedience of these commands. This, he named,
positive law. Anything that was not in conformity with this rule, i.e., if the
rules of a system did not surmount to a collection of orders backed by
threats, emanating from a sovereign, they were not positive law. Austinian
thought indicates that International Law is not really positive law, because
there is no command arising from a sovereign. Customary international law
evolves from mere state practice over a lengthy duration of time, and treaty
law evolves through consensual practice. There is no sovereign authority
issuing commands in the wake of the fact that the world comity is an
anarchical set up. Thus, international law, is only a species of positive
morality, and is not something that comes within the ambit of jurisprudence.
The Austinian theory has been discredited by many a scholar. The whole
concept of commands from a sovereign, backed by threats is not descriptive
of the sum and substance of national law, leave alone international law.[34]
The law is not an element that indulges solely in coercion or compulsion,
but one that seeks to regulate the free relations of entities, by laying down a
set of orderly and binding principles. This is precisely the reason for the
fact that the theory fails to explain why states feel bound by international
law, despite the absence of a sovereign authority.
The consensual theory
This theory holds that the essence of the binding nature of International Law
lies in the fact that its existence as a law flows from the consent of states. It
is a positivistic genre of law, based on the tenets emanating from the actual
practice of states. Primarily, it contends that no International Law can be
created without the consent of the state which is to be bound by the said law.
This automatically implies that a newly created state cannot be bound by
pre-existing rules because consent is the source of all legal obligations. The
will of the state creates the International Law that governs it. The theory
15

contends that an actual law based on reality is created, as opposed to a

series of morality based rules created based on what is desired.
A
state may consent in two ways, explicitly, as pacta sunt servanda in the
case of treaties, and implicitly, as opinion juris in the case of customary
practice. The bottom-line is best encapsulated by the phrase voluntary selfrestriction.
This theory is not free from drawbacks. It is not wholly true that consent
alone makes up the states obligation to follow any rule, thereby creating
International Law. There are several rules that are not to be dependent on
the vagaries of state consent for them to be binding. Secondly, past practice
reveals that newly created states are also bound by pre-existing law, and not
only by laws created prospectively after their evolution. Although this is
only by legal fiction, fact remains that this theory is contradicted.
Natural Law theory
The fundamental origin of every creation being nature, the natural law
theory purports International Law to be based on natural law doctrines, or
the law of nature. The theory presupposes an utopist genre of law,
considering man to be a reasonable, rational being. The binding force is
derived from applying the mandate of natural law to the methods of creation
of law as used by states. Theoretically speaking, this point of view does
little to help understand international law. It is not what states should do,
that governs certain rules in International Law, but rather what the states
actually do, that go to make International Law what it is. Natural law does,
of course, govern those concepts of International Law that do not have a
shelf life- such as equity, justice, good conscience, rules of jus cogens, war
crimes and laws of war, and the respect for human rights. But this is about
as far as the theory can go, since it does little to explain where and how the
binding effect comes into play.

Ubi Societas, Ubi Jus

Practical necessity has been the driving force behind the evolution of any
law, and there isnt much difference where International Law is concerned.
Law is essential for any society, and because of this necessity tag, it is ex
hypothesi binding. The rules of International Law are also necessary, as the
units interacting with one another require an established code of conduct,
and a set of rules and regulations to define their conduct. The theory seems
to be immersed in the perceptible ideas of tautology, given that it holds that
International Law is binding, because it has to be binding. States do indeed
16

belong to a world community of sorts, but in reality, each states seems to be

more concerned with its own interests, and the furtherance of the interests of
its own nationals. This theory is exceptionally pragmatic in that it
recognizes that the binding nature of International Law is an extra-legal
concept.
Deconstructionist Theories
The theory contends that there is no legal objectivity to International Law at
all. It was deemed, by scholars of this ilk, such as Koskenniemi, that
International Law is merely a culmination of politics, morality and selfinterest, that can conveniently be put to use to justify or condemn behaviour
based on the standpoint of the states in question.
Value Oriented Theories
Jurists such as McDougal, Laswell and Feliciano perceive international law
as the pursuit of certain preexisting community values, in consistency with
which all rules should be interpreted and applied.
Realist Theories
The contention of this theory is that the real importance of International Law
lies not in the validity or otherwise of its claim to be law, but in the impact
it makes on the conduct of international relations. The theory perceives that
it is enough to justify its existence by surmising that it is accepted as a major
influence on international politics. The question as to whether or not it is
accepted as law is neither here nor there, nor whether it is disobeyed or
obeyed.
Non-Statist theories
The fundamental notion that the law is created by the states for the states is
rejected by this brand of thinking. Such a perception, the theorists contend,
is far too parochial in it understanding of International Law. International
Law cannot be confined within the ambit of the functional zones of states
alone, since it governs a much bigger picture, of which this is only a part.
The Practical Approach
The practical side of International Law evinces the manner in which
International Law is dealt with, by states in their practice. The primary
surmise is that International Law, as a system of law, exists because there is
a body of rules that states believe they are bound by, in their interactions
with one another. Such acceptance of such a body of rules exposes the
weaknesses of the contentions of those that argue that International Law
does not exist.
17

International Law is an integral part of every nations jurisprudential realm.

It is virtually embedded in the day-to-day workings of National Courts,
Foreign Offices, Governmental and Non-Governmental Organizations, and
even in International Organizations. Several decisions pronounced by
National Courts are considered important expositions of International Law
and its application.[35] International Organizations depend on the acumen of
lawyers to conduct their operations.
States, in the International scenario, do not consider themselves to be above
the law in any respect, but instead, consider themselves bound by certain
intangible, and yet binding precepts. There is no modern day instance of a
state claiming that it is not bound by any law. A wrongdoing state is wont to
justify its stance under some defense provision or under any legally
accepted cadre of behaviour by drawing a reference to a law, or its
contents.
Consistency in obeying and fulfilling the legal obligations dictated by
International Law is the highest form of available evidence to prove that
there is, indeed, a working legal framework. There are numerous instances
where the law is violated, flouted, or even misconstrued, but all of these go
to prove the primary existence of the law itself.
A major cause for concern is as to whether, International Law may be
enforced, and if that be so, how. One of the most frequently used arguments
against International Law, is that it cannot truly be enforced. In any and
every national legal system, the law is known to be enforced. If a wrong is
committed, a punishment does, and shall follow suit. But what happens in
International Law? Practice depicts that there is no real, formal enforcement
of the law, as has been seen in the United States illegal invasion of
Grenada, Afghanistan and Iraq. However, the singular point that should be
in consideration is that the law is made to govern the individuals, and it is
not that they are obeyed purely because they are enforceable. It is not the
question as to the quality of law in place, but the law itself, that finds its
place to regulate the subjects it targets. International law has never been
wholly dependent on institutionalized enforcement, and as a natural
corollary, there isnt really a court, or a police force or any similar organ at
the International Level, to do this. Enforcement procedures do exist, such as
the Security Councils power to take action against a state flouting
International Law, [36] the deprivation of legal rights and privileges from
the state involved in the violation, and judicial enforcement through
tribunals and courts.[37]
Having said this, it is imperative that we understand that International Law
18

is also rife with its own drawbacks. It would be fallacious to conclude that
international law is a perfect system. There is plenty of room for
improvement, given that the law has not even reached the peak of its
evolutionary development. The first major factor that strikes one in his study
of International Law, is the astute lack of institutions. There is no
legislature, judiciary or executive, so to speak of, and nor any functionary,
such as the police forces and a similar ilk. This may not seem to be a
serious defect because of the different purpose of international law, but it
does not rule out that there will always be some difficulties, especially if
malefactors are perceived to be able to violate the law with impunity.
Secondly, the overtly flexible and open-ended nature of International Law
does not bode well in the attempt to seek certainty. The lack of clarity in the
meaning of the law itself may prove to be reason enough to spark a dispute
between states. Thirdly, each state may be driven to pursue its own vital
interests, with more preference for it as opposed to fulfilling international
obligations. The rules of self-defense, self-help and necessity become
means for the state to justify such action in the international realm.
Private International Law and Public International Law
International Law is divided into two basic kinds, Conflict of Laws (called
Private International Law), and Public International Law. Private
international law deals with issues arising within particular legal systems,
where foreign elements play a role, thereby raising questions as to the
applicability of the foreign law itself, or the role of the foreign court in
passing the requisite judgment.[38] There are obviously several differences
marking the two as distinct entities. Public International Law essentially
governs relations between sovereign States in their inter-relations with one
another. Private International Law, on the contrary, works to govern private
issues and disputes involving individuals, artificial and natural. Public
International Law is largely made of treaty and customary law, while
Private International Law is comprised of the quintessential rules of
national or domestic laws of different states that compete between
themselves as to answering the question of which one ought to prevail over
the other. Thus, the latter is an actual part of the domestic legal system.
There appears to be little connection between public International Law and
the various municipal systems of Private International Law.[39] The
principal idea underlying Private International Law is the notion that there
are certain circumstances that deem it fit to allow a foreign legal system to
govern a matter, or to allow a foreign court to decide a particular case. The
fact that each State in question has a different perception as far as these
circumstances are concerned, primarily leads to the conflict.
19

While there are indeed a plethora of differences between the rules of

Private International Law in different countries, it must be remembered that
there are several countries that share similar rules. However, this similarity
cannot be solely attributed to Public International Law, as the similarities in
different legal systems derive their foundations from several factors, ranging
from pure coincidence, to convenience. At the same time, it cannot be
dismissed that States do embark upon creating treaties to unify their rules of
Private International Law, which thereby paves the way for Public
International Law to regulate the content of Private International Law.[40]
The Hague Conference of Private International Law, is evidence to such
effect.[41]
For states to incorporate a norm of Public International Law in the wake of
their legal system, it is not only necessary to show that room for such a rule
does exist in their municipal system, but also that there is an opinion juris
warranting that states are obliged to incorporate the same. Private
International Law, on the contrary, does not restrict itself in this manner, as a
judge confronted with a case involving a plausible foreign law intervention
stratagem, do not delve into the depths of what the law maybe, in the other
states. A State deviating from the expected genre of activity in Private
International Law, does not face ostracism or sanctions, as opposed to the
case involving a violation of or deviation from Public International Law.
Public International Law governs states and international organizations to a
larger extent, as opposed to individuals. Private International Law is
concerned with individuals. Public International Law is not necessarily
always a part of Municipal Law, while Private International Law is
essentially so. Public International Law is largely the same for all states,
while the same is not the case with Private International Law. Private
International Law is concerned largely with which forum needs to decide
the matter, and thereby which Law ought to govern the differences. Public
International Law works on an overriding tangent.
International Law: The Vanishing Point of
Jurisprudence?
In Hollands words, International Law is the vanishing point of
jurisprudence, since it lacks any arbiter of disputed questions, save
public opinion, beyond and above the disputant parties themselves, and
since, in proportion as it tends to become assimilated to true law by the
aggregation of States into a larger society, it ceases to be itself, and is
transmuted into the public law of a federal government.[42] Austin
purports that International Law, as Holland has pointed out, is not a real
20

law, given that there are no sanctions, nor any effective machinery.
However, it cannot be believed that this point of view is true in entirety.
Sanctions are not always the most essential elements of law. And if it be
true that they are indeed construed as essential elements, it will be improper
to deem that International Law is devoid of any sanctions whatsoever.
Traditional International Law contained sanctions such as Pacific
Blockades, retorsions, war reprisals and self-defense as accepted
Sanctions. With the advent of the UN Charter, the Security Council is
authorized to recommend or decide upon the measures taken to implement
the decisions of the International Court of Justice. Furthermore, the rules of
Collective Self-Defense, and Self-Defense under Article 51 of the UN
Charter, allow for response to any use of force by states in the International
Realm. The UN Security Council, empowered under Article 16 of the UN
Charter to use economic measures to address "threats of aggression" and
"breaches of peace," has also approved partial or comprehensive sanctions
on only two occasions from 1945 to 1990. By contrast, since 1990 the
Security Council has imposed sanctions on eleven nations, including the
former Yugoslavia, Libya, Somalia, Liberia, Haiti, and several other
nations. Sanctions seem to lend themselves well to international
governance. Instances such as the Lockerbie Bombings case,[43] where
action against the Libyans was taken by the UN for the bombing of a Pan
American flight in 1988 over Lockerbie led to the death of 270 people, and
subsequently instances involving North Korea and Congo are proof enough.
In Hollands view, there is no judge or arbitrator to decide international
disputes. However, in the wake of International Courts, such as the
International Court of Justice, the International Criminal Court and the like,
there are plenty of reasons to accept the contrary view. Although the
International Court of Justice seemingly lacks compulsory jurisdiction, and
has no real effective authority to see to it that its decisions are enforced, and
that there is no binding effect of these decisions, the fact remains that the
forum is, in every sense of the term, a World Court. Parties privy to the
dispute are bound by the decision as elaborated under A.59 of the UN
Charter, and although the rule of stare decisis does not bind the Court,
prudence in exercising discretion allows the Court to follow the path it
traced on an earlier account. Each member of the UN is bound to comply
with the decisions of the ICJ, as under A.94 of the UN Charter. Failure to
perform its obligations paves way for the intervention of the Security
Council. There is room for compulsory jurisdiction, as seen under A.36(2)
of the Statute of the ICJ.
21

Thus, it cannot wisely be construed that International Law is indeed, a

vanishing point of jurisprudence. While it may not fall in line with the
expected framework for all laws, it must be understood that the manner in
which the International Set-up is constructed, with all states being
considered equal and sovereign, there cannot be a conventional legal set up,
warranting a supervening authority over states that seek anarchy.
Weaknesses in the System: The time for change
International Law is hardly free from flaws, as is the case with every other
genre of law. Primarily, there is really no effective authority that churns out
legislative material. Although anarchy is to be preserved at all costs,
maintaining a legislative body to give the proposed legal set up a form and a
tangible structure would bode well. Sanctions backing International Law
ought to be strengthened manifold, considering the fact that the breaches of
International Law are more frequent, and less effectively controlled.
Although Customary law is a very important source, the intervening notions
of persistent and subsequent objectors, and the parametric paradigm of
changing customs cause one too many issues in terms of interpretation and
understanding of the law. It is the very notion that there is no clarity in the
law that paves way for debates that in turn, become disputes. The ambit of
the law must be widened enough to include a codification of customary
practice, as is being partially fulfilled by the International Law
Commission. Furthermore, the rule of stare decisis could be made
applicable to the International Court of Justice, and also, the rule of making
the decision absolutely binding on the parties to the case in question. This
would not prove to be an intervention in their sovereign rights, but instead,
would prove to be a stronger mechanism in assuring the anarchical set up
that the international arena requires.
Another aspect that needs to be curbed is the unholy trend of individual
states, venturing into the arena of peacekeeping by delving into unilateral
sanctions. Unilateral sanctions seem to disturb the balance of equanimity
and peace in the international set up, by sounding out the wrong notion, that
some states are indeed, superior to the rest. Inaction by the international
authorities, namely, the body created as a comity of nations ought not to be
the case. There should, for this reason, be a rule of law, and not a rule of
perceived morality. Intervention in other States is being increasingly
justified, or rather, claimed to be justified, in the name of humanitarian
requirements, which, in reality, is but a mask, a faade to hide the real
intentions backing a states activities. A stronger foothold on the legislative
framework, and an executive body that would enforce the law, would prove
22

to be useful in setting the ground norms for international relations.

International Law today
Law per se, as a framework provided for social engineering, can hardly be
deemed static. As a natural corollary, it would be in the fitness of things to
understand that International Law takes this dynamic nature to a new level
altogether, considering the developments of states in their relations with one
another. Every individual entity in the world community seeks peace and
stability in its relations with other similar entities. This paves way for the
evolution of values, norms and mores, governing social, economic and
political relations. It is only fair, therefore, to understand that International
Law is a product of the vagaries of the comity of nations, and the
environment that shrouds the same. International law has clearly evolved in
accordance with the set notions prevailing in each age, and in order to last
and survive, it is necessary that it be altered in accordance with the
prevalent reality in each era.
There are, of course, myriads of miniscule and major conflicts arising out of
the formulation of new norms. Old norms and the newly evolving trends do
not always fit in to accommodate one another. Thus, the world comity is
posed with the problem, of where to draw the line, between the old
yardsticks, and the new ones. The world comity is called upon to infuse life
into the new norms, while not disrupting the fabric of the already existent
system.
Change is the only constant, and naturally, adaptation to all genres of
change, is a necessity. The resounding developments of technology, have
unleashed into the world, the internet, nuclear weapons, modern forms of
crime such as terrorism, cyber offences and such others of a similar global
cadre. Nuclear weapons and the subsequent arms race have created a furor
among nations, creating some sort of a status quo in Europe, and a balance
of terror world over. Technology has scaled new heights, allowing man to
explore the depths of the ocean, and the vertical heights of outer space.
Mining of the ocean-bed and harvesting of live species under the sea are
now a reality, but nevertheless, sparks plenty of debates as to the rightful
beneficiaries of such exploitation.[44] Outer space has evoked debates, on
the liability of states in the spatial realm, on the question of ownership of a
portion of space that cannot wisely be demarcated as ones own territorial
expanse, state responsibility for issues in outer space,[45] and the arms race
in outer space and of the ever worrisome question of use of force.[46] The
global terror network has sparked much consternation, given the rise in
numbers of terror attacks world over. The key questions terror poses the
23

world are that of state responsibility, in the wake of state-sponsored

terrorism,[47] issues of extradition of suspected and proved terrorists,[48]
and the subsequent question of jurisdictional competence for the trial of a
terrorist once the person is brought forward post-extradition.[49] The
environment and related concerns have been brought within the ambit of
international law, too. The advent of global warming, a new tribe of
environmental refugees, environmental degradation and over-exploitation of
resources have posed a threat to the sustainability of the environment as a
whole.[50] Understanding that natural resources are common to all states,
the international legal framework has embraced environmental concerns
within its purview.[51]
The expanse of international law cannot be confined within the ambit of
words. Its broad spectrum encompasses a plethora of issues, ranging from
human rights, to war crimes, from outer space law to the law of sea. It
would be fitting to thereby infer, that international law has expanded from
its original duty of maintaining peace, to the added responsibility of
determining the consequence of modern interests of states. However, the
raison detre of international law and the determining factor in its
composition remains the needs and characteristics of the international
political system.[52] Quite obviously, when there are several units
comprising a system, there has to be a working model to govern the logistic
dynamics of their interrelationships, whatever may form the basis of the
same, whether hostility or peaceful co-existence. The anarchical set up in
the international realm has made it clear in no uncertain terms, that there
cannot be a world order forged on the foundation stone of hostility. In a
globalized world, no state can stand independent of relations with other
states. Each state is, in many ways than one, so intricately woven into the
weft of an international community, that it is virtually inextricable. And so,
one arrives at some form of international legal order, no matter how
unsophisticated and occasionally positively disorderly it may be.[53]
There are no singular centralized legislating, executing and judicial
authorities in International law. Thus, all that evolves as International Law
is a series of primary rules, and norms warranting a certain genre of
conduct. In many ways, International Law can be deemed a conglomeration
of principles of law as are recognized by states in their own individual
sphere of functioning. A state is thus obliged to follow international law,
because fundamentally, it is driven by the core philosophy of do unto
others, as you expect others to do unto you.

24

Chapter 2- The Sources of International Law

The word source has a plethora of interpretations.[54] Professor
H.L.A.Hart distinguishes between its use in a material or historical sense,
and in a formal or legal sense.[55] The former implies that the term implies
a causal or a historical influence, chronicling the originating points of a
certain rule of law, by clearly defining a place and time marking its
evolution. The latter ignores the date or place of origin of the rule of law,
but places importance on the date and other criteria marking the point of
acceptance of the legal system as binding. The concept of binding law is,
thus, distinguished from morality and social norms; and the law, as it is, i.e.,
de lege lata is different from the law as it should be, i.e., de lege feranda.
[56] This is where a source plays a role, working on issues pertaining to the
law making processes, and is not to be confused with mere informative or
bibliographical sources.[57]
At this juncture, it is imperative to understand the dynamics of the
International Realm, a mechanism fundamentally anarchical in its structure.
There are defined entities in the National set up, marking the Legislature, the
Executive and the Judiciary. This makes it easy to determine where the law
originates from, and what it is, that goes into making the law. A simple case
in point is the Constitution. In the United States of America, India, Australia,
to name a few States, the law of the land is codified in a written form, and it
is from the authority conferred upon the Parliament by the instrument, that
the law originates. However, in the case of the United Kingdom, there is no
written Constitution. A series of conventional practices, and documents
upon which the unwritten Constitution exists, is the only set of rules. Once
again, given that there is a defined set of entities such as the Legislature,
Executive and Judiciary, precious little is left to a scholars research, as to
where the law originates from, or what it contains. The International arena,
however, does not function in this manner. There is no authority to adopt
universally binding legislation,[58] and no compulsory jurisdiction of any
international court or tribunal without consent from the States. The very
subjects of International Law create the rules and principles that they are
bound by. States create International Law, per se, by their interactions with
one another. Conventions are born by State relations, customs and general
practice evolves from State activity in tandem with the need of the hour, as
current events demand of them. Thus, what a State does, says or agrees to at
one point, with time and continual practice, evolves into a rule that binds the
State itself.
Sources of International Law are a varied spectrum. From written material
25

such as Treaties and Conventions, to unwritten codes governing conduct

such as custom, a plethora of sources infuse life in the body of law
considered as International Law. The 19th century viewpoint, as voiced by
the positivists, recognized that a sovereign could limit its authority to act by
consenting to an agreement according to the principle pacta sunt servanda,
and that a treaty bound only those privy to it, as according to the principle of
pacta tertiis nec nosunct, nec prosunct. This consensual view of
international law was reflected in the 1920 Statute of the Permanent Court
of International Justice, and preserved in Article 38(1) of the 1946 Statute
of the International Court of Justice, which still holds well as the single
definitive statement of the sources of International Law. The Court is
required to apply, among other things, (a) international conventions
"expressly recognized by the contesting states", (b) "international custom, as
evidence of a general practice accepted as law", (c) the general principles
applied by the Court were those that had been "the general principles of the
law recognized by civilized nations"- which functioned as a means to avert
non-liquet, and (d) "judicial decisions" and the most highly qualified
juristic writings "as subsidiary means for the determination of rules of law".
This provision has been accepted as constituting a comprehensive list of
sources of International Law.[59] Paragraph 2 of the Article speaks of the
settlement of disputes, ex aequo et bono, which in turn would not prejudice
the power of the court. This is not a source, but a mere indicator of the fact
that disputes shall be settled in a manner that is not entirely based on
International Law, but in fact, goes beyond the realm of International Law,
subject, of course, to the consent of the concerned parties.[60] The doctrine
ascribes to the preceding paragraph, the status of important evidence of the
sources of positive International Law. This trend, is reflected in other
spheres too. Article 92 of the UN Charter warrants that the Statute of the ICJ
is an integral part of the Charter itself. The UN Charter binds almost every
State, with a few exceptions. It is true that even states that have not been
members of the UN, have accessed and been privy to the International Court
of Justice, in pursuit of a solution for their disputes, following Article 93(2)
of the UN Charter. The International Court of Justice is the principal judicial
organ of the UN, as outlined under A.92, and is one of the six principal
organs of the UN. The law applied by the principal judicial organ of the
UN, thus, is the law that binds all the States in the world.
Although Article 38 enumerates the primary sources, it must be remembered
that this is not based on lex specialis derogate generali, and hence, does
not have a hierarchy. Such a hierarchy would be a fallacy, were it installed
in the first place. A simple pointer as to why, is understood by perusing
26

Article 53 of the Vienna Convention on the Law of Treaties, which indicates

that the peremptory norms of International Law are accepted and recognized
by the International Community of States as a whole, and that there can be
no derogation from it, whatsoever.
Article 38 cannot be construed as an exhaustive enumeration of the sources
of Law. State Practice per se, is not actively accepted as a source albeit
enumerated. Mere practice devoid of any opinion juris is not accepted, as it
does not amount to customary practice. Unilateral acts by which States
assume obligations are also excluded from the ambit of the sources. The
rules and norms established by established International Organizations are
also excluded from the ambit of the sources. Although these rules do not
bind the states as such, they bode well for fostering stronger relations among
states.

Treaties
The ICJ Statute speaks of International Conventions, whether general or
particular, establishing rules expressly recognized by the contesting
states.[61] The term conventions, in this context, implies treaties. This
point needs to be reemphasized at each level, particularly to avoid the
confusion of the term with either conferences, or with conventions of the
constitution in the unwritten British Constitution. A treaty refers to an
agreement under International Law, entered into by Sovereign States
amongst themselves, or with International Organizations. Other common
names for treaties are agreements, protocols, covenants, conventions and
exchange of letters. Treaties may loosely be compared to contracts,
considering that the underlying notion is the rule of pacta sunt servanda,
which implies that treaties ought to be respected. A state that is privy to a
treaty alone is bound by it, and a third state is not, unless the treaties
expressly create obligations and rights for third parties. This is called pacta
nec nosunct, nec prosunct. The Law relating to treaties has best been
codified by the Vienna Convention on the Law of Treaties, 1969, which has
been signed and ratified by certain states. Those that have not ratified it or
signed it, may still recognize it as binding, as it is, in many ways than one, a
restatement of customary practice.
Treaties are major instruments that cement bonds and cooperation among
states in International Law, and hence, are rightfully termed as the maids-ofall-work in International Law.[62] This being a fact, it must be understood
27

that cooperation in the international front infuses a state of flux and

dynamism characterized by a continual change in the positions of the states
concerned. Treaties, therefore, can rightfully be deemed as instruments that
infuse change. Most times, treaties come into play in circumstances where
there is a need for solutions, or the settlement of differences between states.
Broadly, treaties can be segregated into two categories each, based upon
two broad mechanisms of categorization. On the basis of their nature,
treaties may be law-making and contractual treaties. On the basis of the
parties privy to them, treaties may be either bilateral or multilateral in
nature.
In relation to the first modality of classification, treaties can be construed
either law-making, or contractual in nature. Treaties may come across as
contracts, but in many ways, they also perform the functions of statutes,
conveyances, memoranda of association of companies, and even in capacity
as the constitution. In national systems, Legislatures exist, which are vested
with the responsibility of making laws. The products of these legislatures
surmount to statutes. On the contrary, a contract simply binds only those who
are privy to the sum and substance of the same. The treaties that seek to
impose obligations on parties and seek to regulate their conduct, are called
law making treaties, or traites-lois. The primary aim of such treaties is to
cover the universal and substantive legal principles, and to conclude an
agreement in pertinence therein.[63] On the contrary, Contract Treaties, or
traites-contract, are those which resemble contracts, and create obligations
for the concerned states alone. Such treaties only cover specific aspects and
concerns of the states involved. Treaty contracts are not law-making in
nature, but are evidence of customary law and state practice. A series of
bilateral treaties containing a similar rule may be evidence of the existence
of that rule in customary law, although this proposition needs to be taken
with a pinch of salt, given that bilateral treaties reflect discrete
circumstances.
Based on the second modality of categorization, treaties maybe segregated
into bilateral and multilateral. Bilateral treaties are negotiated between a
limited number of states, most commonly between entities that are clearly
divided into two sides. A simple case in point is the conclusion of the treaty
between Switzerland and the European Union, where seventeen parties to
the treaty had neatly fallen into two sides, leading the concluding entities to
lie as the European Union on one part, and Switzerland on the other.
Effectively, treaties are express agreements and are a form of substitute
legislation as undertaken by states. Those states that do not sign the treaties
28

are not bound by their provisions.[64] However, this is not the case where
the treaty reflects merely customary practice, or already established state
practice. Even when a treaty rule comes into being, covering the same
ground as a customary rule, the latter will not be simply absorbed within the
former, but, instead, will maintain its separate existence.[65]
Certain treaties are path-breaking, in that they attempt to establish a regime,
which will, out of necessity, also extend to non-parties. A case in point is
the UN Charter, in specific, articles 2(4) and 2(6), and the General
Agreement on Trade and Tariffs. Many a time, treaties also codify
Customary International Law, which implies that they put down, on a
concrete basis, those rules that states have continually followed in the
International scenario, as evidenced by comprehensive state practice.
Classic examples of this are the Vienna Conventions on the Law of Treaties,
and the UN Charter, both of which, in addition to laying down the customary
norms as they are, also progressively lay down the law by improvising and
adding to the extant set of rules.
Customary International Law
Customary International Law refers to practices that derive from custom.
The Statute of the International Court of Justice[66] acknowledges the
existence of Customary International Law in Article 38(1)(b), incorporated
into the United Nations Charter by Article 92.[67] In International Law,
custom largely emerges from the practice and activities of states, the
process of which may take a significant quantum of time, to emerge on the
scene as customary practice. In the Nicaragua case,[68] the ICJ defined
custom as constituted by two elements, namely, an objective one that refers
to general practice, and the subjective one which is acceptance as law,
named opinion juris. State practice can be evidenced in different ways,
ranging from the domestic legislation, to diplomatic and ministerial
statements, from governmental manuals and judicial decisions, to votes cast
in the United Nations General Assembly, and the Security Council.
However, not all state practice amounts to custom. There must be a general
recognition of the fact that the prevalent practice is of such nature, that the
states are under an obligation under the law, to act in that specified manner.
This is called opinio juris. To arrive, thus, at a comprehensive and all
encompassing definition of custom, it must be understood that Customary
International Law comprises all such rules and norms as emanate from
consistent state practice undertaken with the notion in mind that the law
requires them to act in that manner.[69] Establishing this requirement, i.e..,
opinio juris, can be rather difficult, because all that is necessary is a
29

consistent fact-and-case based analysis.[70] The easiest instance is where

there is a treaty that codifies existent Customary International Law. This is
clearly an exhibition of opinio juris, even if it is a treaty that includes
progressive development, it still stands out as an authoritative statement of
law.[71] The Vienna Convention on the Law of Treaties, 1969, is a classic
example of this. Though only about a hundred odd states are parties to it,
most of its principles are unquestionable accepted by states in their
understanding and participation in International Law. Sometimes, even a
collection of bilateral treaties on a single subject evidences custom. The
decisions of International Tribunals, Courts and Judicial authorities are also
evidence of Customary International Law.
The Elements constituting Custom
In understanding Customary International Law, it is necessary to understand
what each element comprising it stands for. Actual state practice of states is
the first requisite for a norm to attain the status of Customary International
Law. State practice, refers to the behavioural component of Customary
International Law. The crux lies in the fact that a number of states perform
such acts or omissions as are constitutive of the customary practice. For a
valid International Custom, to be in existence, it is necessary to prove it by
way of satisfactory evidence that the custom is of such nature that it
received general consent of the states and no civilized state opposes it, or
shall oppose it.[72] As far as both custom and state practice are concerned,
four factors need to be taken into consideration, namely, duration,
consistency, repetition and generality.
Where duration is concerned, it is important to understand that there is no
specified time limit, no rigid timeline as such. It entirely depends on a case
to case basis, and due regard needs to be given to the nature of the usage in
question. Classical international law required the element of duration so that
a particular practice could become part of customary international law. To a
great extent this element consisted in a period of time during which a state
could become aware of another state's practice. This obviously had to
change with the advent of telecommunications since states now have
immediate access to state practice. This situation led to the creation of
instant customary law.[73]
As regards continuity and repetition, the rule laid down in the Asylum
Case[74] albeit a largely contextual decision, aptly encapsulates the
position in International Law, to be one where the Customary Rule must be
in accordance with a constant and uniform usage practiced by states. The
facts of the case were such that Victor Raul Haya de la Torre, the leader of
30

an unsuccessful rebellion in Peru, during the most part of 1948, secured for
himself, asylum in the Colombian Embassy in Lima, Peru. Columbia and
Peru approached the ICJ as regards whether Colombia had the right to grant
asylum. The Court, in the context of the case, sought to study the practices of
states at large in pertinence to asylum, and thereby noticed that there were
one too many inconsistencies in practice, making it difficult to quite clearly
cull out consistent state practice. In the Right of Passage over Indian
Territory case,[75] the ICJ pointed out that when in regard to any matter or
practice, two states follow it repeatedly for a long time, it becomes a
binding customary rule. However, this does not rule out the fact that if states
perceive that a course of action is legal, and perform it, even if only once in
the context of a specific instance, it is logical to infer that there is tacit
consent for the rule involved.[76] What needs to be understood, thus, is that
where there are major inconsistencies, either in the form of acts or
omissions that go against the rule in question, the creation of a customary
rule is precluded. Minor inconsistencies do not punch holes in the creation
of a customary norm, as was laid down in the Fisheries case,[77] where the
dispute involved British claims against Norway for the introduction by the
latter, of national legislation granting exclusive fishing rights surrounding
the Norwegian coastline positioned north of the Arctic Circle, eventually
culminating in the courts support of the Norwegian mechanism of territorial
delimitation of the sea. Another point worthy of noting is that where there is
no practice that goes against a supposed norm of Customary International
Law, even a small quantum of practice is sufficient to create a customary
rule, even if it involves few states, or a very short duration, or the
combination of all factors. A classic example of this was evidenced in the
Legality of Nuclear Weapons Case,[78] where the Court, while dabbling
with the question as regards the existence of a Customary practice
prohibiting the use of nuclear weapons, inter alia, concluded that there
cannot be an oversight where the policy of deterrence was concerned, to
which an appreciable segment of the International Community has devoutly
adhered to, for several years. Naturally, it is only the nuclear weapons
states that subscribe to such practice, and not to all the states in the
International Community. Thus, in sum, it is not necessary that there needs to
be unanimous practice in the same direction by all the states involved.
The element of uniformity has been explained by the International Court of
Justice as being an essential prerequisite before a custom could come into
existence.[79] Absolute rigorous conformity with the purported practice
need not be existent.[80] Just about enough to prove uniformity of practice
in favour of the generic stance is sufficient. A custom must essentially
31

mirror the practice of states in the international realm. Though it is indeed

true that there are a couple of states that are stronger, and influence the
formulation of what is deemed as the law, it must be remembered that as
long as there is uniformity, customary status is deemed to be achieved.
There needs to be an analysis of the nature of the rule, and all opposition it
arouses, since this factor makes a difference when it comes to determining if
it is Customary Law or otherwise. Where there is a lot of opposition to a
proposition, it will not attain a status of Customary International Law. No
unsubstantiated claims will be accepted as evidencing customary law, as
that would surmount to a case of unilateral law-making, which would be an
anathema to the very premise of impartiality that International Law is
founded upon.
Another point to be considered is the strength that the original rule wielded,
in place of which the new rule stands. This catalyzes the creation of instant
customary law, as was evidenced by the evolution of outer space as the
common heritage of mankind, thereby limiting sovereignty rights to airspace
alone.[81] One point that has not been as much as mentioned in myriads of
scholastic opinion and juristic treatises, is the fact that this practice so
spoken of, needs to stand up to the mark of legality and morality. A
hypothetical example would amplify this point. If several states in the
international arena follow a rigorous campaign of persecutions and
genocide, this does not fall within the ambit of custom, or state practice
evidencing custom, for the simple reason that it is an anathema to what the
law, and morality dictates.
The second prerequisite is opinio juris, which refers to the psychological
or subjective notion that drives a state to act in a certain manner.
Essentially, a state acts in a certain way because it believes it ought to act in
that manner under the law, and that it is binding upon them to act in that
manner. The maxim in entirety reads as opinio juris sine necessitatis, and
was coined by Francois Geny, in the course of his attempt of distinguishing
between legal custom and a mere usage.[82] The rule finds roots in the
comity of states doctrine.[83] The definition essentially presupposes that all
rules of Customary International Law are framed in terms of duties.[84] The
crux of the rule is that a state is only bound by what it consents to, what it
deems an obligation for it to observe, and therefore obeys the mandates of
the rule in question. As for culling out opinio juris, one needs to delve into
the world of state practice and the catena of acts and omissions comprising
their conduct and participation in the International Arena. While bilateral
and multilateral treaties, resolutions of the General Assembly and the
Security Council of the UN and documents evidencing International
32

scholastic opinion are valuable evidence of opinio juris, it is not

particularly mandatory that there be official statements signifying its
existence.[85] In addition to understanding what a state does, or refrains
from doing, there needs to be an analysis of the reaction of other states, to
the conduct of the former.[86]
Aside of state practice, another vehicle that orchestrates the creation of new
customary law, are treaties.[87] The ICJ has stated that the norm-creating
process is a perfectly possible one, and does, from time to time occur. It has
further held that it constitutes one of the recognized mechanisms by way of
which new rules of Customary International Law may be formed.[88]
All along, emphasis has significantly been laid on the generic acceptance of
a norm as a custom, in order for it to subsist as part of the law that states are
bound by, in the International Realm.
Jus Cogens
A valuable subset of customary International Law is the conceptual
framework of jus cogens. Jus Cogens refers to those peremptory norms in
International Law from which no derogation is permissible. There is no
clear agreement as regards precisely which norms are jus cogens, nor how
a norm reaches that status, but it is a generally accepted notion that jus
cogens includes the prohibition of genocide, maritime piracy, slavery,
torture, the prohibition of the use of force and the threat to use force, and
wars of aggression and territorial aggrandizement.[89] The most famous jus
cogens norm is the prohibition of the use of force, and the threat to use force
in international relations, a rule that is both crystallized in treaty law[90]
and in Judicial opinion.[91] For a jus cogens norm to be created, the
principle must first be established as a rule of international law and then
recognized by the international community as a peremptory rule of law from
which no derogation is permitted.
Unlike ordinary customary law, which has traditionally required consent
and allows the alteration of its obligations between states through treaties,
peremptory norms cannot be violated by any state through international
treaties or local or special customs or even general customary rules not
endowed with the same normative force.[92] The Vienna Convention on the
Law of Treaties, under Article 53, emphasizes that any treaty that conflicts
with a peremptory norm is void. The treaty allows for the emergence of new
peremptory norms as under Article 64, but does not specify any
compilation, or comprehensive list of accepted peremptory norms. The
number of peremptory norms though generally considered limited have at no
point been exclusively catalogued. They are not listed or defined by any
33

authoritative body, but arise out of case law and changing social and
political attitudes. Generally included are prohibitions on waging
aggressive war, crimes against humanity, war crimes, maritime piracy,
genocide, apartheid, slavery, and torture.[93] As an example, the world
court has regarded the principle that it is impermissible for a State to
acquire territory through war as a peremptory norm.[94] Jus cogens is
different from erga omnes obligations, in that the latter refer to obligations
that are owed to the community as a whole. An erga omnes obligation exists
because of the universal and undeniable interest in the perpetuation of
critical rights (and the prevention of their breach), while a jus cogens norm
exists predominantly due to the level of importance attached to the
adherence to such a norm is high. Examples of erga omnes norms include
piracy, genocide, slavery, torture, and racial discrimination. The concept
was recognized in the ICJ's decision in the Barcelona Traction case.[95]
Reservations to a jus cogens are unlawful.[96]
Acquiescence and Protest- Change agents in the Custom-creation process
Customary International Law essentially emerges from a pattern established
by states in the course of their conduct, along with an absence of protest and
acquiescence by other states.[97] The three tools, in tandem with the rules
of recognition, admission and estoppel form a rather complex weft within
the ambit of which legal principles are related, and are deemed applicable.
Acquiescence is the equivalent of tacit recognition manifested by unilateral
conduct which the other party may interpret as consent and as founded upon
the principles of good faith and equity.[98] Acquiescence by states in the
International arena, to the practices or conduct of other states, without any
form of protest, indicates a presumption in favour of the fact that such
conduct of the state is accorded legitimacy. This automatically implies that
when other states remain silent in response to the conduct of one other state
in the International sphere, there is acceptance of the practice as being
legitimate in the eyes of law.[99] The converse cannot be read into
existence, either, i.e.., that there cannot be an inference that merely because
certain states do not indulge in a certain activity, there is a rule prohibiting
the activity. If states in the International arena abstain from following the
same route as a state in its conduct conscious of being under an obligation to
abstain, a rule prohibiting the activity does indeed exist.
When a new rule comes into place, acquiescence in this context can be a
rather problematic issue. The inference of acquiescence where a new rule is
concerned is rather difficult, for the simple reason that a states silence may
not be due only to acquiescence, but plausibly due to other factors such as
34

sheer lack of interest, or even the diversion of attention towards something

more important and vital to the interests of the state, or it may wish not to
offend gratuitously. Where a state acts in contradiction to an existent
customary rule, and other states acquiesce in this, then that specific state is
deemed not to be bound by the original rule.[100] The position of a state
that has, from the very inception of the customary norm, objected to its
existence, is easy to understand.[101] However, as regards the position of a
state that suddenly takes a deviant stand and refutes obeisance to a norm it
subscribed to, there seems to be one too many issues to settle. But a new
rule that uproots an existent norm and receives support from a majority of
states, will not lose ground on account of the fact that a few states protest
against its continued existence. Persistent and constant protests against a
newly emergent rule may well create a path in favour of creating a
recognized exception to the rule, but this is to be construed as applicable
only after a thorough assessment of the facts and circumstances of the case,
thereby arriving at a conclusion favourable to granting the exception.
The Persistent Objector
Without doubt, a state is in no way bound by any obligatory requirement to
follow a rule that it has not consented to. This norm takes shape in the
context of treaties as pacta nec nosunct, nec prosunct,[102] and in the
context of customary law, finds root in the emerging persistent objector
doctrine. If a state persistently objects to the development of a customary
norm in International Law, it cannot be held to that law when it ripens into a
custom. The doctrine finds its roots in the Asylum case[103] and the
Fisheries Case.[104] In both the cases, the acceptance of the doctrines was
purely on dictum.[105]
The doctrine dictates that the objectors shall be exempted from the norm
after it becomes a custom, so long as the state in question is capable of
rebutting and does rebut, the assumption that it acquiesced to the norm, and
prove that, instead, it exercised clear and consistent objections throughout
the norms emergence. Simply put, where a state does not deem a rule as
custom, it cannot be expected to conform to such a norm. A state, thus, can
be bound by the general practice of other states even against its own wishes,
if it does not so much as protest against the emergence of the rule and if it
does not consistently does so.[106]
Two primary theories run parallel to each other in the context of a states
position as regards customary International Law. The traditional approach
regards obeisance to all rules unless objected to explicitly since the
inception of the rule itself as the fundamental norm. Based on this, one
35

would surmise that a new state would be bound by all customs in force at
the time of their attainment of statehood. The second theory is more obliging
where new states are concerned, contending that a state is permitted to
choose between existent customs, without regard to what other states
contend.[107] This approach is rather disruptive, in that there will be a case
of constant choice, and every time a state is found to act in contradiction to
an established custom, it would conveniently purport subscription to the
alternative school of thinking as regards the custom itself. The former
approach is rather rigidly typecast, demanding complete obedience.
Absolute obeisance to rules would leave no room for change, and would
witness the continued applicability of a redundant genre of principles. What
is required, thus, is a middle-path of sorts, cutting across through both
theories.
Presently, the doctrine is accepted as a valid defense to the binding effect of
customary International Law,[108] however, it is relegated to taking a backseat in the event when it is raised in the context of peremptory norms, or jus
cogens. Norms develop over time, and some, rather quickly. Since the
inception of the norm itself, and in some rare cases, since the inception of
the concerned state itself,[109] certain states may choose to object to the
custom in content and form in which it originated, and consistently object to
its use and application. However, as far as consistency and objections as
terms fit for interpretation are concerned, there is still a considerable set of
unsettled questions, warranting doubts specifically as regards the
evidentiary burden upon the states to prove their consistent objection.[110]
Arising as a mildly deviant, emergent offshoot, is the doctrine of subsequent
objector, a theory which purports that a state may choose to take a stance
against a custom supported earlier by them, or not opposed earlier by them,
claiming a case of a change in fundamental circumstances as the reason
precluding its continued applicability, or even indicating the plausible
redundancy of the norm in the wake of a changed world. Under the
subsequent objector doctrine, states can gain an exemption to depart from an
existing rule of customary law only by securing the acquiescence of other
states. The generic trend is such that a subsequent opt out right is untenable
because other states have come to rely on the subsequent objector
originally conforming to the rule. [111]
Behaviour and acts deviating from the already established set of customary
rules are instrumental in the creation of customary law. Old rules are
displaced by new ones, and new law keeps emerging in the dynamic realm
that International Law is. As newer customary rules emerge in an attempt to
36

displace old ones, there are instances of both rules existing side by side
until such time there is a choice of one, thereby explicitly overruling the
other. This amplifies the fact that states are bound by all norms, except those
that they dissent from since the rules inception.
Regional Customary Law
Customary Law need not be an all-encompassing set of norms. It is likely
that there are customs specific to certain portions of the world, connected
geographically- as is the case of the rules governing the European Union,
Latin America, the Organization of American States to name a few,[112] or
connected ideologically, like states that subscribed to the notion of nonalignment during the Cold War.[113] It may also be exclusive as regards the
relationship between two states alone.[114]In the context of a regional
custom, the standard of proof required is far higher than a custom whose
applicability is not confined to specific zones. The state that alleges the
existence of such custom as between itself and another state has the burden
of proof to prove what it asserts.[115] In the Right of Passage over Indian
Territory case,[116] the ICJ recognized the custom claimed by Portugal,
namely, that there was a right of passage over Indian territory as between
Portugal enclaves, as existent.
The quintessence of local or regional custom depends upon the particular
activity of one state being accepted by the other state as an expression of a
legal obligation, or the assertion of a right. This distinguishes general
custom from local custom, being that in the former, a considerable majority
of states in support of the norm in question is a prerequisite for the
establishment of the norm as a custom.[117] Local customs need the
acceptance of only the concerned states, whether it is the both states privy to
a custom, or the couple of states proximally located or ideologically bound.
General Principles of Law
Many a time, courts in the International sphere may find the absence of laws
on a particular issue. This leads the courts to use existing rules, or general
principles that guide the existent legal system, whether they b referred to as
emanating from justice, equity or good conscience. Since there is no real
legislating authority in the International Realm, and that states seek to ensure
the continued maintenance of the anarchical balance of power, there happen
to be a number of situations seeing issues in need of legislative assistance.
These create what are commonly understood as gaps in the law, and are
termed as Non-Liquet.[118] This lacuna has paved the way for the
emergence of the use of general principles of law, as recognized by
civilized states, by the International Court of Justice in deciding cases.[119]
37

These general principles are deemed capable of closing the gap in the
extant legal system, and assist the courts in coming to a clear conclusion.
[120]
The General principles include within their ambit, a wide spectrum of legal
principles. Natural law scholars hold that all principles of natural law are
all included, while Postitivists hold that this is merely a subheading under
treaty and customary law, in order to be able to include all the remaining
elements under its ambit, aside of all things that require consent. Principles
emanating from procedural law and the law of evidence, such as estoppel
and res judicata, and from natural law, such as equity, justice and good
conscience are the most commonly used general principles in deciding
cases in the International sphere.
In the Chorzow Factory case,[121] the PCIJ recognized that every violation
of an agreement involves an obligation to make reparation, in the context of
a wrong being consistent of indemnity corresponding to the damage caused.
In the Corfu Channel case,[122] circumstantial evidence and its
evidentiary value, as being admitted in all legal systems, and its use in
International decisions being evidence of its importance in International
Law. The court went on to enunciate that res judicata, the rule that
precludes a matter from being subject to re-litigation if it has already been
decided by a final court of law, as being a part of the general principles of
law.[123] Similarly, the rule of estoppel was also deemed a part of the
General principles of law.[124]The full compensation of prejudice, by
awarding to the injured party the damnum emergence and lucrum cessans is
a principle common to the main systems of municipal law, and therefore, a
general principle of law which may be considered as a source of
International Law.[125] Acquired rights are also deemed a part of the
general principles of law.[126]
The most important of all the general principles of law is the rule of Good
faith.[127] The principle has been exposited under Article 2(2) of the 1970
Declaration on Friendly Relations, and in the Nuclear Test cases.[128]
Good faith, also known by a term of reference in Latin, bona fides refers to
good, honest intention (even if they eventually produce unfortunate results)
or belief. In law, it implies the mental and moral state of honesty, conviction
as to the truth or falsehood of a proposition or body of opinion, or as to the
rectitude or depravity of a line of conduct.[129] This concept is important in
law, especially equitable matters. Good faith, conceptually speaking, is not
really a source of an obligation where none would exist otherwise.[130]
Equity is another major part of the General principles. It refers to the set of
38

legal principles, in jurisdictions following the English common law

tradition, which supplement strict rules of law where their application
would operate harshly. In the Diversion of Water from the Maine case,
[131] it was held that what are regarded as principles of equity, have long
been treated as part of International Law and have been applied by the
Courts. The ICJ has a long history in deciding cases in accordance with
equitable principles.[132] The use of equity has generally been more
pronounced in the 1982 UNCLOS cases, specifically under Article 59,
which provides the basis for the resolution of conflicts regarding the
attribution of rights and jurisdiction in the exclusive economic zone, and
Article 83, which deals with the delimitation of the continental shelf
between States with opposite or adjacent coasts; and in the context of the
Convention on the Law of non-navigational uses of International
Watercourses, 1997.
Judicial Decisions
Judicial decisions are to be used as subsidiary sources of law, as subsidiary
means of interpretation and determination of the rules of law, rather than an
actual source. Under Article 38(1)(d) of its Statute, the ICJ is also to apply
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. It is difficult to actually quantify the extent of
influence these materials have on the development of the law. The decisions
of international and municipal courts and the publications of academics can
be referred to, not as an actual source of law as such, but as a means of
recognizing the law established in other sources. In practice the
International Court of Justice does not refer to domestic decisions although
it does invoke its previous case-law. Pleadings in cases before the ICJ are
often replete with references to case law and to legal literature. Decisions
of varied courts before the ICJ hold persuasive value, to such extent, as
clarified by Article 59 of the ICJ Statute itself, that even the decisions of the
ICJ bind none aside of those privy to the case as parties to the dispute.
There is, evidently thus, no rule of stare decisis in International Law.
Nevertheless, oftentimes, it has been found that the Court does refer to its
past decisions and advisory opinions to support its explanation of a present
case.
Judicial decisions hold a rather important position in the big picture. Courts
do not just determine the law, but actually play a pragmatic role in
determining the course of its evolutionary development. In tracing the
development of the law, one can find plenty of milestones with the hallmark
39

of judicial opinion. In the Anglo-Norwegian Fisheries case, [133] the

statement of the criteria for the recognition of baselines from which to
measure the territorial sea, later found place in the 1958 Geneva
Convention. In the Reparations case,[134] the court recognized the legal
personality as possessed by international institutions. The policy of
reservations to treaties was accorded recognition as having legal standing,
in the Genocide case.[135] In the Nottebohm case,[136] the Court upheld
the principle of effective nationality, which began to be named the
Nottebohm principle, where the national must prove a meaningful
connection to the state in question. Until this decision, this principle was
previously applied only in cases of dual nationality to determine which
nationality should be used in a given case.
The reasoning that resides behind a conscious choice of excluding stare
decisis in International Law, is that the International Realm is largely
dynamic. What was decided at an early point of time might have well been
what the situation demanded at that juncture, but clearly need not be fitting
in the light of a similar case, later in the future. For instance, the Lotus case,
[137] that created the Lotus principle or Lotus approach, was originally
considered an epoch making foundation of International Law, which states
that sovereign states may act in any way they wish so long as they do not
contravene an explicit prohibition. This principle, however, was later
overruled by Article 11 of the 1958 High Seas Convention, which
emphasized the fact that only the flag state or the state of which the alleged
offender was a national had jurisdiction over sailors regarding incidents
occurring in high seas.
Judicial decisions are inclusive of all arbitral awards, and also decisions of
municipal courts. The Alabama Claims Arbitration,[138] heralded the
new era of peaceful settlement of International disputes in the course of
which increasing use was made of judicial and arbitration methods for
conflict resolution. The case predominantly involved a vessel built in
Liverpool, to the specifications of the concerned confederate states, which
succeeded in capturing some seventy Federal ships during the American
civil war. The US sought compensation after the War for the depredation of
the Alabama, and other ships, and the Tribunal accepted this. Britain had
infringed the rules of neutrality and hence paid compensation.
The decisions of municipal courts are also an invaluable source of
information as regards customary International Law, or even state practice.
[139] In addition to these, the decisions of the European Court of Human
Rights, and the Inter-American Court of Human Rights and other similar
40

forums hold importance. All of these decisions, however, at all times,

remain only persuasive in nature.
Juristic Writing
Academia is a very clear and consolidated rendition of the law, and the
ways in which it is to be interpreted. Juristic writings constitute the second
part of the source as mentioned under Article 38(1)(d). Since the inception
of International Law, immense importance has been vested in the perusal of
the scholastic opinion of a plethora of writers in International Law, such as
Gentili, Grotius, Pufendorf, Bynkershoek and Vattel to name a few. The
origin points of International Law are marked with the opinions of scholars,
commencing with the Naturalist and Positivist schools of thinking. With the
emergence of the Positivist school, scholastic opinion began expanding
horizons of thinking, where interpretations of actual events were included
alongside the actual text of the law.
The scholarly works of prominent jurists are not sources of international
law but are essential in developing the rules that are sourced in treaties,
custom and the general principles of law. This is accepted practice in the
interpretation of international law and was utilized by the United States
Supreme Court in The Paquete Habana case.[140] Juristic opinion is a
rather useful ready source of practice of states as regards International Law,
and is evidence of principles that form customary law. Textbooks and
articles enable the discovery of what the law is on a particular point, rather
than being the fount of actual rules.[141] However, there have been several
writers who have paved the way for the evolution of specific laws.[142]
Besides, academic thought stimulates opinions and existent values, and also
points out the loopholes that exist in any legal system.
Another dimension to scholastic writing emanates from Publicists and
policy analysts, who, through their writings, provide immense information
on the position of a state as regards a particular issue in International Law.
States, too, in the presentation of claims rely upon the points of view as
taken by policy analysts and publicists in their country. The value of the
writings of policy analysts, however, at no point, should be underestimated
as being reflective of a biased viewpoint, because it ultimately boils down
to the reflection of the sentiments of a segment of people represented by
such a publicist.
Ex Aequo Et Bono
Ex aequo et bono, a Latin term that means according to the right and good
or from equity and conscience, is a found under Article 38(2), of the Statute
of the International Court of Justice which provides that the court may
41

decide cases ex aequo et bono, but only where the parties agree thereto.
Dynamic changes in international relations, typified by the growing
international investment disputes, have brought the concept of ex aequo et
bono back into focus.[143] Parties are increasingly faced with little or no
law in the applicable field, or a situation where one or both parties mistrust
the law or its application to their particular dispute. Coupled with this is a
growing interest in the expeditious resolution of disputes in emerging areas
of law. The expertise of international adjudicators may be viewed as
outweighing reliance on inapplicable law. A system which depends on
conceptions of fairness may also be considered preferable to the law of an
applicable state.[144]
Developing Sources of International Law
Broadly speaking, sources may be segregated into two groups, namely, one
that deals with formulating the law- which includes treaties, customs and
general principles of the law; and two, those sources that evidence these
rules, which includes juristic opinion and judicial decisions. However, it is
not wholly impossible to have sources that involve a mix of the two.
As new sources that seem a chip of both blocks emerge, the dividing line
between both forms seems to slowly disappear. Some of the new sources
include resolutions of the UN General Assembly and the Security Council.
[145] Certain resolutions of the UN General Assembly are binding on the
member states, while others are largely recommendatory and crystallize
opinions. Mostly, the General Assemblys resolutions evidence state
practice, and are means to determine the existence of opinion juris.[146]
This is because, when states vote, they effectively testify to the fact that they
either agree, or disagree with a particular point of view. An example for
this is the case of the 1960 Declaration on the Granting of Independence to
Colonial Countries and Peoples, which was a Resolution that was signed by
all members, with nine abstentions. It became some sort of a path-breaking
resolution, which recognized self-determination as a right, and also
demanded that colonial rule be put an end to. Another agreement is the Outer
Space Declaration of 1963, which led to the evolution of new rules that
were laid down to govern access, use and the exploration of outer space.
Unilateral acts of states also constitute sources of International Law.[147]
Though, strictly speaking, these are not sources of law, they can be
construed as constituting sources of obligation.[148] Usually, unilateral acts
are taken to gauge the point of view of the state in question.
The Hierarchy of the Sources
Article 38(1) enunciates the general sources of law that constitute the
42

International Legal regime. In the order it enunciates, Treaties come first,

followed by Customary International Law, General Principles of Law and
Judicial decisions and Juristic Writings in that order. The General
principles are entirely complementary to treaty law and custom, considering
that they are predominantly applied for the sake of non-liquet.
The sources that are of more recent origin are generally accepted as more
authoritative and specific rules take precedence over general rules. Jus
cogens rules are peremptory norms that cannot be deviated from by states as
a consequence of which they possess a higher status than jus dispositivum,
or the law subject to the dispensation of the parties, or normal international
rules. It can be altered only by subsequent norms of the same status. Rules in
the former category include the prohibitions against genocide, slavery, and
piracy and the outlawing of aggression. The Vienna Convention on the Law
of Treaties provides under Article 53 that a treaty will be void if, at the time
of its conclusion, it conflicts with a peremptory norm of general
international law.
Further, the wrongfulness of a state action is precluded if the act is required
by a peremptory norm of general international law. International law also
has established a category of erga omnes obligations, which apply to all
states. Whereas in ordinary obligations the defaulting state bears
responsibility toward particular interested states, in the breach of erga
omnes obligations, all states have an interest and may take appropriate
actions in response.
Where does Article 38 stand today?
Article 38 of the Statute of the International Court of Justice has paved the
way for ample discussion, debate and disputes, in relation to its standing
and treatment of the conceptual scope and framework of the sources of
international law, more so in the past few decades. After a brief
understanding of the contents of the article, it stands clear that the purport of
the provision is to essentially determine exactly what the ICJ may deem and
apply, as international law, while it expounds the law in relation to disputes,
or requests for advisory opinions. As a consequence, therefore, scholars,
lawyers and everyone who has anything to do with international law, almost
automatically begin to look up just the four sources as Article 38
enumerates, and in the process, completely rely upon what Article 38 states,
that is, these are the only sources of international law. However, one must
not forget that the article itself was a part of a statute that was prepared as
early as the 1940s, and the world today has traversed a considerably long
43

trajectory from the era, to where it is today. Given the number of events one
can pin down, the number of changes as the times have advanced, it is in
order that we review Article 38, and what has been, but a blind reliance
upon it.
A cursory glance at Article 38 indicates the nature of the international
anarchy and legal order that the statute intended to achieve. International
law, at that juncture, presumed that states were the only subjects of the law,
and therefore, were the principal actors. The article is in pursuance of the
same genre of philosophy, where it completely ignores the role of
international organizations, corporations, individuals, non-governmental
organizations and other non-state actors. Furthermore, the article is
emphatic upon a consent-based legal system, which hinges upon voluntary
action. States are essentially bound to follow only those norms that they
consent to, whether by signing a treaty, or by allowing a usage to burgeon
into a custom without their persistent or subsequent objections, or by putting
together what amounts to the generally accepted principles of law- which
need to be accepted by the concerned state itself, or even by putting on the
anvil the general practice of states as accepted and recognized by the state
concerned, as well. This is not quite the scenario in the present realm,
considering that states are being bound actively by norms that they have not
quite consented to. Many a jus cogens or even erga omnes obligations have
not really been consented to, in terms of a definitive approach to either term.
The active role of the Security Council and the mandates under Chapter VII
indicates the passage of resolutions by a fifteen-state body, which binds
other states though in practice, they have not consented to the same.
A simple perusal of article 38 indicates its incompleteness. The role of
resolutions, the extent of ambiguity shrouding the principles of customary
international law and general state practice are conspicuous by their
absence. States are in general concurrence on certain norms as constituting
jus cogens and erga omnes obligations, but nothing in the statutory matrix
depicts the attachment of any importance to the principles, or how one may
actually arrive at the conclusion that a certain norm belongs to the purport
and ambit of customary international law. The article remains ignorant of the
notion of persistent and subsequent objectors and their role in obstructing
the mushrooming of customary international law. It simply indicates that a
notion of custom is a source of law, but fails to note that the importance of
certain norms may be eroded by objections raised by either states that began
objection since the inception of the custom itself, or, subsequent to its
emergence at the inception of the state itself. Another facet that has been
ignored is the role of regional custom. By excluding epoch-making legal
44

considerations such as these, article 38 fails to deliver in the present era.

The consequences are hardships aplenty, since states face the obligation to
discharge a heavy burden in the pursuit of proving that it is either bound, or
refuses to be bound by the said practice itself. What really constitutes state
practice, how many states are necessary to follow a particular course of
action for it to burgeon into custom, how is opinio juris to be determined,
and what is the status accorded to the resolutions of the UNSC and the
UNGA, are only just the tip of the iceberg.
Using the phrase civilized nations, article 38 is still couched in the postworld war time, where ideological hegemony and the superior status
assumed by some states marked the legal mindset of the founding fathers of
the UN system. Today, steeped in the ideology of equality of states and
sovereign authority, states have begun to work towards creating a system of
inter-state recognition that has in the process, of built the foundations for an
anarchy. In the wake of such changes, it would be wise for the Article to be
reworked to speak of states, rather than civilized or uncivilized, for it is
really no longer a world where a true hierarchy of states exists. Another
fallacious facet to article 38 is the importance attached to the teachings of
highly qualified publicists of various nations, and to the customary and
state practice in the world order, falls apart in the wake of an anarchy
comprising of nearly 200 states, and still more as they emerge afresh. Back
then, there was a miniscule arrangement comprising 40-odd nation-states
that built up the international anarchy, and consequently, the ideals attached
to the aforementioned were feasible. However, in todays world, that
feasibility is lost in the burgeoning number of states, and in the varied
practices of states. A classic humdinger is the case of the United States
actions in Iraq and Afghanistan, which took the world by surprise as it
involved a case of taking law into its own hands. The act was a flagrant
violation of international law, and naturally, no other state can claim to
follow it because it was in effect, the practice of a civilized nation.
By laying down the sources in the form of a vertically-ordered hierarchy,
with room for the ICJ to be the final decision-maker as to the law, there has
been a case of fragmentation of the law itself. The ICJ is not the only
international dispute resolution body; there are plenty of tribunals,
arbitration-based organizations and courts. With their presence among the
international dispute settlement machinery available for states, it seems too
confined a notion that only the ICJ would be free to determine the last word
on the question of sources.
International Law cannot afford to be watered down. Starting at the top,
45

there are so many questions as to what the law itself is, and where one
could fathom the fount, or the true source for something that has in effect,
come to be the law. True, indeed, the branch merges into what has come to
be known as soft law, but, one cannot turn a blind eye to the areas that
scream hoarse for improvement, and can, in fact, be improved. The sources
are fraught with irregularities, as questions still remain. There is no doubt
that Article 38 still leaves a lot to be desired. Of course, there is no
question as to the value of the provision itself, because in many ways than
one, the article has helped define international law itself, as a discipline
distinct from politics and international relations. It has definitely aimed at
creating a mature legal framework of sorts, but hasnt seen the process
through. However, merely because of these lofty ideals, one cannot allow
the law to stultify in the confines of article 38. As dynamic as society is,
law needs to be one step ahead to ensure that there is a means to keep
actions and omissions in check. Therefore, reviewing Article 38 would
bode well to the process of evolution of international law.
The ILC and Codification- Progressive steps in the process of
Creating Law
Private codification efforts have been rife, allowing for the development of
International Law, however, nothing has reached the scale and magnitude
that the ILC has, effectively. Intergovernmental regulation of legal questions
of general and permanent interest may be said to have originated at the
Congress of Vienna, in 1814, where the provisions of law pertaining to
International rivers, abolition of slave trade, ranks of Diplomatic agents
were all adopted by the signatory states of the Treaty of Paris, 1814. Since
that point of time, International legal rules have been progressively
developed and codified, on a plethora of issues ranging from the laws of
war, the pacific settlement of disputes and the unification of private
international law, among other things. As the First World War drew to a
close, there was immense importance attached to progressive codification
of International Law.
Over the years, several attempts have been made in the effort to codify
international law. The work which culminated in the creation of the
International Law Commission was began in the Resolution of the Assembly
of the League of Nations of 22 September 1924, which established the
Committee of Experts for the Progressive Codification of International Law,
consisting of 17 members. The Committee was primarily established for the
purpose of making recommendations as to which issues required to be
addressed in international law and the steps desirable to that end. In 1927,
46

after discussions with the Governments and the League Council, the
assembly decided to convene a diplomatic conference, seeking to codify the
law on nationality, territorial waters and the responsibility of states for
damage caused in their territory to the person or property of foreigners.
[149]
The committee's work led to the League of Nations Codification Conference
of 1930, which dealt mainly with the issues of nationality laws, territorial
waters and state responsibility to damage caused to foreign nationals. Fortyseven governments were represented in the codification conference. At the
end of this, the instrument emergent therein touched only upon the issue of
nationality.[150]
On 25 September, 1931, the League Assembly adopted an important
resolution on the procedure of codification, with the main theme being the
strengthening of the influence of governments at every stage of codification.
[151] When the Second World War broke out, aside of practical precedents
being created by practice, theoretically, nothing was done, where
codification was concerned.
The United Nations adopted this principle from the League's resolution in
Article 13(1) of its Charter, which states that the General Assembly shall
initiate studies and make recommendations for the purpose of encouraging
the progressive development of international law and its codification. On
December 11, 1946, The General Assembly passed Resolution 94, seeking
to establish a committee of legal experts to make recommendations to the
UN Secretary-General on the modes in which the General Assembly could
encourage the progressive development of international law and its
codification. The committee of experts recommended the establishment of a
permanent UN commission to promote these objectives. This gave way to
the emergence of the ILC, or the International Law Commission as it is
known. On November 21, 1947, the UN General Assembly passed
Resolution 174, which provided for the creation of the International Law
Commission in order to fulfill the obligations of the Charter.[152] The
statute of the Commission defined its purposes as being the Promotion of the
codification of International Law, and solving the problems within public
and private international law. States were divided in their opinions. Some
states construed codification and progressive development as being one,
while the other states perceived marked differences. Either-way, they
believed that it would be necessary to conclude international conventions
before the results were binding on states.
Practice of the ILC reveals that its work involves both, codification and
th

47

progressive development of the law.[153] Some of the Commissions work

that is worthy of mention include the formulations of the Nuremberg
principle, the formulation of clear cut precepts as regards the question of
International Criminal Jurisdiction in its first session in 1949, the Draft
Statute for the ICC in 1994, the Draft Code of Crimes against the Peace and
Security of Mankind in 1996, and the Draft Code for State Responsibility.
The International Law Commission's work has led to the creation of a
number of treaties and other works of international law that are key to the
present international legal order such as the Vienna Convention on the Law
of Treaties, The Vienna Convention on Succession of States in respect of
Treaties, The Vienna Convention on Diplomatic Relations, The Draft
Articles on the Responsibility of States for Internationally Wrongful Acts
and the International Criminal Court, first proposed in December 1948 at
the request of the UN General Assembly.
The ICJ has decided several cases in keeping with the work of the ILC. The
Gabcikovo-Nagymaros Danube Dam case,[154] is a standing example. In
the words of President Schwebel, the judgment is notable because of the
breadth and depth of the importance given in it to the work product of the
ILC- particularly the Draft Articles on State Responsibility. This rather
illustrates the fact that just as the judgments and opinions of the Court have
influenced the work of the ILC, so the work of the Commission may
influence that of the Court.[155]
Other codifying entities include the UNCITRAL and the UNCTAD, which
have expanded the ambit of available material in the fields of economic,
financial and development activities. There are also temporary organs such
as the Committee on the Principles of International Law, which have worked
towards the production of various declarations and statements. The ILO,
UNEP, UNFCCC and the UNESCO have also played an integral role in
codification. Private codification efforts have been rife, allowing for the
development of International Law, however, nothing has reached the scale
and magnitude that the ILC has, effectively.

48

Chapter 3- International Law and Municipal

Law
International Law is the law that governs the inter-relations between states,
and international organizations. The term is commonly used for referring to
laws that govern the conduct of independent nations in their relationships
with one another. It differs from other legal systems in that it primarily
concerns the rights and liabilities of sovereign states rather than private
citizens.[156] International Law governs the state in its capacity as a
sovereign, in its relationship with other sovereign states. To a lesser degree,
international law also may affect multinational corporations and
individuals, an impact increasingly evolving beyond domestic legal
interpretation and enforcement. Municipal law, on the other hand, refers to
the law that governs the domestic realm, or the inner workings of the states,
thereby dabbling with private citizens. The term Municipal Law is given
by International Lawyers, to the national or domestic laws of the state. It
essentially seeks to govern the state in its capacity as a sovereign in relation
to its private citizens.
The relationship between International Law and Municipal Law is rather
relevant in the study of International Law. Municipal law acts as a source of
law, in that it evidences state practice, customary law, and even lends some
of the general principles of law to International Law, succinctly filling the
gaps in the International Legal realm. International Law largely deals with
the study that combines two main branches of law, namely, the law of
nations called jus gentium and international agreements and conventions,
called jus inter gentes, which have different theoretical foundations and
should not be confused. Municipal law fills the interstices that prevail in the
nearly all-encompassing system that International Law aspires to be. The
relationship between International Law and Municipal Law is fraught with
theoretical problems.
Ample literature is available on the confluence of both streams of law, and
these are equally indicative of two theories that govern the applicable
dimensions of the two laws when they function in conjunction with each
other. However, neither theory attempts to distinguish both, nor provides
one with primacy over the other. Both theories, rather, justify the existence
of both laws in the real sense of the term. The two primary theories
governing International Law and Municipal Law, and the relationship
between the two are the dualist and monist theory. Alongside these, there is
the transformation theory, and the delegation theory that govern both streams
of law, as well.
49

The Dualist Theory

The Dualist theory, also called the pluralist or positivist theory, is a school
of thought that assumes that International Law and Municipal Law are two
different systems of law, that exist independently of each other.[157] The
central question that arises, now, thus, is as to which of the two are superior
to the other. The theory points out that both streams of the law are exist
separately and cannot purport to have an effect on, or overrule each other.
This is essentially due to the fundamentally different legal structures
employed by both laws on the one hand as by the state, and on the other
hand, as between states.
The chief proponents of this theory are Triepel and Anzilotti. Triepel
maintains that for Municipal Law, the subject is essentially the individual,
while for International Law, the subject is the state. Given that the subjects
are not the same, there has to be a transformation of one to the other. This is
called the Transformation Theory. However, Triepels claim cannot be
accepted in astute entirety, for the simple reason that dynamism in the
International milieu has warranted the fact that the individual is
progressively being recognized as a subject of International Law, with the
Nuremberg and the Angola Trials . in Anzilotis point of view, however, the
two laws are to be conditioned. He holds that state laws are imperatival and
hence have to be obeyed, whereas International Law is largely in the nature
of promises, and therefore is necessary to transform promises into
commands before making them applicable to the municipal sphere. He went
on to state that the position is not necessarily sacrosanct, in the sense that
law is not necessarily a command, because people obey the law when they
consent to it, and often times, people obey the law because of the possible
gains that may accrue from it.
The Dualist theory has been best exhibited in the model of British Law. A
treaty has no effect in English domestic law, unless it is expressly made a
part of it. Once it is made a part of the law, it is entirely enforceable in the
courts. However, merely because it is a part of English Law does not mean
that it can give rise to causes of actions for individuals. If the treaty alters
domestic law, or requires the raising of revenue or alteration of taxation,
only then can it give rise to a cause of action for an individual. An
unincorporated treaty has no formal standing in England. A treaty in conflict
with the common law will, consequently result in the prevailing of the latter.
An incorporated treaty becomes a part of the law of the land, but does not
enjoy any special status as such. It shares the same relationship with other
legislations, as two statutes in the domestic realm do. At all times, the
50

Parliament remains supreme, given that it can pass legislation that can
override a treaty, even if it binds the UK in the International sphere.
Dualism requires a translation of International Law into Municipal Law.
Devoid of translation, International Law is really no law at all if it is not
National Law. A state accepting a treaty, but neither adapting its National
Law to conform with the treaty, nor creating a National Law explicitly
incorporating the treaty, violates International Law.
Dualists believe that judges in National Courts never apply International
Law unless and until the same is translated into National Law.[158] As a
rule, the Dualists support the supremacy of International Law. International
Law must be translated into National Law, and existing National Law that
contradicts International Law must be translated away, i.e., it must be
suitably modified or eliminated in order to conform to such translated
International Law. Such translation, however, poses a problem to national
laws that are voted after translation. Although it is possible for the
translation of national law to match International Law, the translated law
can be overridden by another national law on the principle of lex posterior
derogate legi priori, a norm which means that the later law repeals the
earlier one. This means, thus, that a state can effectively violate
International Law.[159] A dualist system thus, needs continuous scrutiny to
see to it that a later law does not violate international Law.
Dualism recognizes the fundamentally different nature of inter-state and
intra-state relations, and the different legal structures that are put to use in
the course of the interactions between the state and the individual, and the
state and other states. Where municipal legislation permits the exercise of
rules of International Law as part of its regime, on sufferance as it were, this
is an example of the supreme authority of the state within its own domestic
jurisdiction, rather than any influence maintained by International Law
within the internal sphere.[160]
Monism
Monism pursues a contention that is diametrically opposed to the
contentions of the Dualist school of thinking. The theory perceives
International Law and Municipal Law as one, and holds that a states
conduct at the national and International level are governed by the dictates
of both sets of rules, national and international, that the state has consented
to be bound by. Monist states make a distinction between International Law
in the form of treaties, and in the form of jus cogens.
Monism does not require a translation of International Laws into Municipal
Law before it is applicable in the domestic realm. Once ratified, the rules of
51

International Law find immediate acceptance in the domestic legal set up.
This automatically implies that a judge in a monistic judicial system is free
to apply to International Law; a citizen is free to invoke International Law
before a municipal court of law, all as though they were integral parts of
Municipal Law. A judge may even declare a national rule invalid if it is
found to be in contravention of any International rule.
Monism in its purest form recognizes International Law and Municipal Law
as being one, to such an extent that where national law is found
contradicting International Law, it is null and void, even if it was enacted
prior to the International Law in question, and even if it was the constitution
itself.
The chief proponent of Monism was Hans Kelsen, who stated that the
ultimate source of validity of all law is derived from a basic tenet of
International Law. His theory purports that all rules of international law
were supreme over municipal law, that a municipal law that is inconsistent
with International Law is automatically null and void, and that all rules of
International law are directly applicable to the domestic spheres of a state.
Kelsen relied on the philosophy of Kant as a basis for his theory.
Law is regarded as constituting an order that lays down patterns of
behaviour that ought to be followed, coupled with provisions for sanctions,
which are employed once an illegal act or course of conduct has occurred
or has been embarked upon. Given that this definition implies both, within
the internal and the international sphere, a logical unity of the two may be
forged.[161]
Given that states own their legal relationship to the roles of International
Law, and since states cannot be equal before the law, without a rule to that
effect, it follows that International Law is superior to municipal law. Article
27 of the Vienna Convention on the Law of Treaties suggests that a state
party may not invoke internal law as a justification for its failure to carry
out an international agreement.
Germany is an example of the monistic school of thinking. It follows a
system of practice where treaties take effect as legislation the moment they
are ratified, and immediately, by way of the rule of lex posterior, they only
take precedence over national legislation enacted prior to their ratification.
Similarly, the monistic rule is followed in Holland. When an individual
finds his right violated, in Holland, he can go to a Dutch judge who must
apply the law of the conventions by which Holland is bound, even if it is not
in conformity with the prerequisites of Dutch domestic Law. [162]
While it is true that both, a monist and a dualist state can comply with
52

International Law, a monist state is less at risk of violating international

rules, because judges can apply international law directly.[163] In a monist
state, more reliance is vested on the judges than upon the legislators. Given
that no judge is absolutely infallible, it must be remembered that there is a
likelihood of a judge making mistakes, as a consequence of which a state
may just end up violating International law, as the case would be if the
dualist state failed to transform the international law into its municipal law.
[164] The quintessence of the monist approach comprises deep suspicion of
an international system built upon the foundation stone of sovereignty and
absolute independence of states. This fact is exemplified by the faith in the
capacity of the rules of International law to instill the international order
with a sense of moral purpose and justice founded upon respect for human
rights and the welfare of individuals.[165]
A third Approach
A third approach, being a modified version of the dualist position, was
formulated by Fitzmaurice and Rousseau. It seeks to establish a recognized
theoretical framework that is steeped in pragmatic reality. The theory
essentially contends that there is no common field of operation between
international law and municipal law, by way of which one system is deemed
superior to the other, or inferior to the other. The theory settles this score by
establishing that each stream of law is supreme in its own sphere of action.
A conflict of obligations emerges, consequently. It implies that a state may
be caught between its obligations to its domestic sphere of action, and its
obligations to the international realm. In all such cases, the domestic sphere
remains unaffected no matter what call the state takes, while if the state
decides against catering to its international obligations, it finds itself in the
thick of controversy for having flouted international law. This theory does
not advocate a specified course of action as a prescription, but instead
points out what happens in reality.[166]
Municipal Law in International Law
International Law does not ignore municipal law. Municipal law is relied
upon largely to evidence customary law, general principles of law and state
practice. International law leaves plenty of questions to municipal law, to
answer.[167] Municipal law cannot be invoked as a justification for the
violation of International Law.[168] A.46(1) of the Vienna Convention on
the Law of Treaties also goes on to establish that a state may not invoke the
fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties
as invalidating its consent, unless the violation of its internal law was
53

manifest and concerned a rule of fundamental importance. [169] Article 7

(2) of the Vienna Convention on the Law of Treaties states that heads of
state belong to the group of persons who by virtue of their functions and
without having to produce full powers are considered as representing their
state. A state has no general obligation to keep themselves informed of
legislative and constitutive developments in other states which are or
become important for the International relations of these states.
Another example is the Alabama Claims Arbitration,[170] where the US
objected strongly when Britain allowed a confederate ship to sail from
Liverpool to prey upon the American shipping segment. The court held that
the fact that Britain had no legislation necessary to prevent the construction
or departure of the vessel could not be put forward as a defense, and as a
consequence of the decision of the court, Britain was made liable to pay
damages for the depredations caused by the warship. A state cannot adduce
as against another state, its own constitution with a view to evading
obligations incumbent upon it under International Law or treaties in force.
[171]
Generally, the fundamental principle of International law, is that it prevails
over municipal law.[172] The inability to act under domestic law is no
defense to non-compliance with an international obligation.[173] However,
by way of contrast, the ICJ pointed out that the fact that an act of a public
authority may have been unlawful in municipal law did not necessarily mean
that the act in question was unlawful in International Law.[174]
Nevertheless, at no point is it to be believed that domestic law is irrelevant,
because of the aforementioned subservience to International Law. Quite
contrarily, internal rules play a very important role in the big picture that the
working of International Law is.
Municipal law is an efficient indicator of a countrys stance, or position on
a particular sphere of functioning. As a consequence thereof, an
international dispute redressing forum would be right in vesting reliance
upon the municipal legal systems of the disputing states before arriving at a
feasible solution. To pinpoint an example, is the Serbian Loans case,[175]
where reliance was vested in the domestic laws of Serbia in the course of
deciding the dispute.
Municipal law is also evidence of state practice, and the general principles
of law.[176] It is mandatory to keep in mind that where an international
court is considering the concepts of national law, when there is an explicit
absence of such concepts in the realm of International Law, care should be
taken to avoid all cases of automatic transposition.[177] Municipal Law is
54

also a great index to the extent of compliance or non-compliance with

International Law and obligations. An excerpt of the judgment rendered by
the PCIJ in the Certain German Interests in Polish Upper Silesia
case[178], is an example to prove this point:
From the standpoint of International Law and of the Court, which is
its organ, municipal laws are merely facts which express the will and
constitute the activities of states, in the same manner as do legal
decisions or administrative measures. The court is certainly not
called upon to interpret Polish Law, per se, but there is nothing to
prevent the Courts giving judgment on the question as to whether or
not, in applying that law, Poland is acting in conformity with its
obligations towards Germany under the Geneva Conventions.
No matter what the context of a role that municipal law has in the
International Legal scenario, at no point can the absence or presence of a
particular factor in municipal law stand as the ground for the evasion of an
International obligation.
International Law before Municipal Courts
States, as has already been mentioned, have a bounden duty to obey and
adhere to International Law. Nevertheless, how states choose to adopt
International Law in their municipal systems differ from one state to the
next. States have an obligation to adhere to the norms of international Law,
and any breach, irrespective of whether by the Legislature, executive or the
judiciary, shall cause the state to bear responsibility.[179] Instances exist
where treaties have dictated requirements of domestic legislation upon
states privy to it.[180] To understand International Law in the municipal
realm, it is necessary to first understand individual modalities as followed
by states. Before going into this, it is necessary to understand the theories
that underlie the applicability of international law within the domestic legal
realm.
The Transformation Theory
The transformation theory arises out of a dualist perception, which
construes International Law and Municipal Law as two different branches,
and notes that for international law to have any effect within the domestic
realm, it needs to be specifically transformed into municipal law. This is
normally accomplished by the aid of the constitutional machinery appointed
to handle the legislative responsibilities. This doctrine finds its roots in all
formalities pertaining to the device of ratification of a treaty by the
sovereign prior to the operation of a treaty.
The Incorporation Theory
55

This theory derives its origins from the monistic school of thinking, which
purports both International and National law are one. The theory contends
that International Law becomes a part of Municipal Law automatically. In
the words of Blackstone, the law of nations, wherever any question arises
which is properly the object of its jurisdiction, is here adopted in its full
extent by the common law, and is held to be a part of the law of the land.
[181] Most countries rely upon these rules by choosing between the two, in
implementing customary International Law. However, treaties follow a
different trajectory, in that they are governed by specific stipulation in the
concerned treaty itself, as enlisted herein below.
The United Kingdom
Britain follows a different pattern for customary international law, from that
which it follows in relation to treaties. Each of these needs to be understood
in detail to comprehend the ways in which Britain works.
Customary International Law
Britain largely follows the theory of incorporation in relation to customary
international law. The adoption of the incorporation theory dates back to the
eighteenth century, where the vagaries of diplomatic immunity were sought
to be channelized into constancy and certainty. Since as early as 1737, as
evidenced in the decision of Buvot v. Barbuit,[182] Lord Talbot was known
to have held that the law of nations in its full extent was part of the law of
England, and as a consequence thereof, a Prussian commercial agent could
not be rendered liable for failing to perform the demands of a decree.
Following suit nearly three decades later, in Triquet v. Bath,[183] Lord
Mansfield upheld the decision in Buvot, while determining as to whether a
Bavarian minister to Britains domestic servant could claim diplomatic
immunity. Albeit an accepted contention, customary rules that ran counter to
previously established Acts of Parliament and precedents would not be
implemented.
Over the entire period of the 19 Century, a whole catena of decisions
emerged, indicating a clear deviance from the incorporation theory, making
a foray into the school of thought pursuing the transformation theory. R. v.
Keyn,[184] marked the turning point. A German ship called the Franconia
collided with and sank a British vessel that was in the English Channel,
squarely within 3 miles from the English coast. Indicted for manslaughter as
a consequence of the death of the passenger, the core contention of the
German captain was that of whether the English Courts had jurisdictional
competence to hear the matter. Analyzing the key factors in the factual and
legal matrix, the court concluded that the rules of International Law may
th

56

contain precepts pertaining to any exercise of jurisdiction over the High

Seas. But, there wasnt any such rule in the English system. The court held
that one thing did not automatically follow from the other, and the power of
the Parliament on the one hand, and the authority of the court to apply
criminal law to a sphere where it had not been applied to, before, had to be
kept independent of one another. Lord Cockburn noted the gap in the English
legal system, specifically in pertinence to legal issues on the High Sea, and
thereby concluded that it was a non-existent rule in British Law, while
existent in International Law. So saying, the German captain was released.
This judgment essentially holds credit for being a turning point in the
theoretical side of Britain and International Law, the decision itself is
criticized for ambiguity primarily in relation to whether or not a right of
jurisdiction exists over the territorial sea.[185] Ultimately, the ambiguity
ceased with the passage of the Territorial Waters Jurisdiction Act,
1878.More than any revolutionary change in stance where the theories are
concerned, the difference underlying these theories is more about a shift in
presumption than anything else.
Later developments dissolved the thin red line separating black from white.
Lord Alverstone in the West Rand Gold Mining Case,[186] declared that
all rules that received the common consent of civilized nations, Britain
being one among them, would apply in the municipal courts. However,
qualifying the rule, he indicated that for such a rule to apply, either it should
be proved by way of satisfactory evidence to have been recognized and
acted upon by Britain, or be of such a nature that no civilized nation should
repudiate it. In Triquets case,[187] Lord Mansfield indicated that the
common law does not include such rules of International Law that find place
in textbooks, and have no evidence of having gotten Britains assent. In
Mortensen v. Peters,[188] Lord Dunedin pointed out that there shall not be
any subservience of statutory law to customary International Law, given that
the supremacy if statutory law emanates from the Supremacy accorded to the
Acts of Parliament. A court would, thus, have to heed the statute even if it
ran counter to a norm of customary International Law.
Lord Arkins words in Chung Chi Cheng v. R,[189] reemphasizes this fact.
Unless accepted and adopted by the domestic legal set-up, a rule of
International Law cannot be applied before the domestic courts. As a
naturally arising corollary, any alleged rule of customary International Law
should be proved by way of evidence adduced, as being a valid and binding
norm, for it to fin acceptance in the municipal realm. It must be understood
that International Law is not construed as foreign law, but as part of the law
57

of the land after sufficient evidence to such effect is adduced. Naturally,

thus, a foreign law has to be proved by way of expert testimony, as though a
fact is being proved. But, for international law, a court can have recourse to
text books and scholarly works instead, or even treaties, conventions,
authoritative texts, state practice and judicial decisions of courts of other
countries.[190]
In the Trendtex Trading Corporation v. Central Bank of Nigeria,[191] the
Court of Appeal comprising three judges unanimously accepted the doctrine
of incorporation as the correct course of action. One point that was
emphasized upon was that International Law did not know the rule of stare
decisis. In the words of Lord Denning, where International Law changes, the
court could implement that change without waiting for the House of Lords to
do it. The rule has since been followed in entirety.[192]
Treaties
Where treaties are concerned, a different set of rules govern the dynamics of
incorporation. States privy to a treaty may create a new law that may be
binding on them irrespective of prior practice or contemporary practice.
Thus, the role of the executive is far more emphasized in the case of treaty
law as opposed to customary law. If it be true that treaties ought to be
rendered applicable directly in the municipal realm right after signature and
ratification, and before domestic operation, the executive would be able to
legislate without the legislature.
The case of the Parliament Belge,[193] is illustrative of this rule. There
was a collision between the Parliament Belge, a cargo boat that belonged to
the King of the Belgians, and a British tug, and this resulted in a claim for
damages by the British Tug before the Probate, Divorce and Admiralty
division of the High Court. The core contention raised by the Attorney
General was that the Court could exercise no jurisdiction over the ship as it
belonged to the Belgian King, and in addition, by way of a political
agreement between Belgium and Britain in 1876, immunity that was
applicable to a warship would also apply to the cargo boat in the present
case. But the contention was rejected under the premise that such immunity
could not be extended to other categories by using a treaty, without
parliamentary consent. Many a time it has been clearly emphasized that it is
the Crown which in the UK possesses constitutional authority to enter into
Treaties and this prerogative power cannot be impugned by the Courts.[194]
This rule certainly has exceptions. S.6 of the European Parliamentary
Election Act 1978, provided that no treaty providing for an increase in the
powers of the European Parliament would be ratified by the UK without
58

prior Parliament approval.[195]

In the United Kingdom, while the Crown signs and ratifies all International
agreements, it cannot legislate directly. An act of Parliament is essential in
order for the treaty to become a part of English Law.[196] It therefore
followed that as far as individuals were concerned, such treaties were res
inter alia acta from which they could derive rights and by which they could
not be deprived of rights or be subjected to obligations.[197] In the words
of Lord Templeman, except to the extent that a treaty becomes incorporated
into the laws of the UK by statute, the courts of the UK have no power to
enforce treaty rights and obligations at the behest of a sovereign government
or at the behest of a private individual. The interpretation of treaties that are
not incorporated by way of a statute into the municipal realm, and the
decision as to whether they have been complied with or not, are matters
exclusively for the Crown as the court must speak with the same voice as
the executive. This rule, of course, is not without exception. A court may
seek to make a reference to a treaty in order to bring out the relevant factual
background,[198] as it occurs in circumstances where a contract
incorporates the terms of a treaty.[199]
The ratification of an international treaty may pave the way for legitimate
expectations, that the executive will, in absence of a statute to the contrary,
or instructions to the contrary, act in conformity with the treaty.[200] Some
treaties do not require the passage of legislation prior to rendering the treaty
as part of the domestic law such as treaties relating to the conduct of war,
cession of territory, imposition of changes and levies on the privy-purse,
[201] and even administrative agreements bearing less importance.
Sometimes, the Parliament may approve in advance the conclusion of
treaties in some specific areas, stipulating the specific limits or sometimes
may utilize any subordinate legislation to deal with a treaty. The general
practice in the UK is to lay before both Houses of the Parliament all treaties
which the UK has signed, or intends to sign.[202] The text of any such
agreement is laid before the Parliament, before any action is taken. This is
called the Ponsonby Rule.[203] All treaties signed after 1 January 1997
have to be laid before the Parliament, along with an Explanatory
Memorandum.
English law presumes that a piece of legislation is to be so construed as to
avoid a conflict with International Law.[204] It is usually operative when
the Act of Parliament which is intended to bring the treaty into effect is itself
steeped in ambiguity. The UK is bound by all international obligations that it
is asked of, in any treaty. This is irrespective of its domestic considerations.
st

59

One case in point is the enforcement of UN Sanctions, as a consequence of

the United Nations Act, 1946, which enables the Crown to adopt Orders in
Council so that effect can be given to sanctions.[205] Interpretation of
international treaties incorporated by statute includes the use of traveaux
preparatoires,[206]
Generally, a broad approach, as taken in Fothergill, is the one that is
followed. In Siddhu v. British Airways,[207] Lord Hope stated that it was
well-established that a purposive approach should be taken to the
interpretation of International Conventions, which have the force of law in
this country. In Salvage v. Lancer Navigation,[208] a more traditional
approach that was founded upon the relevant articles of the Vienna
Convention on the Law of Treaties, 1969, while emphasizing the
significance of a textual interpretation of the words in question as
understood in their ordinary meaning, was relied upon. Courts in Britain
have, however, also adopted a rather progressively broader, purposive
construction to the interpretation of domestic laws in order to ensure
compatibility with treaties and conventions.[209]
The Human Rights Act, 1998 occupies a rather special position. It has been
instrumental in incorporating the European Convention on Human Rights.
S.3 of the said act provides that so far as it is possible to do so, primary and
subordinate legislation must be read and given effect in a way in which is
compatible with convention rights. However, such a rule does not affect the
validity or the continuing operation of any primary legislation that is
incompatible. In the case where a legislation cannot be rendered compatible
with the convention rights, a declaration under s.4 signifying incompatibility
may be made, and the Parliament under s.10, may choose to modify the
incompatible provision. Interpretation of domestic legislation in order to
constitute it compatible with the convention ought to be done with due
reference to the relevant jurisprudence from the European Court of Human
Rights as per s.2 of the Act. The evolution of the European Community as a
burgeoning association of the European states needs to be understood in the
process of studying the manner in which the community law prevails over
national law. Domestic legislation made pursuant to the European
Communities Act, 1972, to this end, have all been given purposive
construction.[210]
The United States of America
Customary Law
America is largely similar to the UK in its modality of handling the
incorporation of customary and treaty based International Law. One
60

additional factor that needs to be taken into account is the Constitution. In

Boos v. Barry,[211] the US Supreme Court held that as a general
proposition it is of course correct that the US has a vital national interest in
complying with International Law. However, at all points of time, the rules
of International Law are always subject to the Constitution. As was the case
with the UK, the incorporation theory was originally accepted, and later
modified. Evidence of the former position was enunciated in the Pacquette
Habana Case,[212], where the court stated that international law is a part
of the American 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. The erstwhile
approach was followed when the theory of incorporation was applied, with
a degree of caution.[213]
As far as customary International Law is concerned, the present approach is
that the Customary International Law in the US is deemed federal law and
its determination by the federal courts binds states courts.[214] This
position has been reiterated in the Committee of US Citizens living in
Nicaragua v. Reagan case.[215] However, the political and judicial organs
of the US are given the power to ignore International Law, in pursuance of a
statute or a controlling executive act. This has been instrumental in stirring
up large controversy,[216] and so has the relationship between custom and
inconsistent pre-existing statutes.[217]
Nevertheless, it is a generally accepted notion that statutes supersede earlier
treaties or customary international law. In Valdez v. Oklahoma,[218] the
court indicated that it would be an anathema to the constitution if a court
decided that a decision of the ICJ overrules a binding decision of the US
Supreme Court and thus afforded a judicial remedy to an individual for a
violation of the Constitution. The presumption that a piece of legislation is
not assumed to run counter to International Law was reiterated in Schroeder
v. Bisell,[219] unless it unmistakably appears that a congressional act was
intended to be in disregard of a principle of International comity, the
presumption is that it was intended to be in conformity with it.[220]
The relationship between the laws of the US and International Law was reexamined in Filartiga v. Pene-Irala.[221] The court of appeals adjudged
that torture amounted to a violation of International Customary Law, and
was thus actionable. It went on to hold that in ascertaining the content of
International Law, the contemporary rules and principles of International
Law were to be interpreted and not those as of date of the prescribing
statute.
61

In Siderman v. Republic of Argentina,[222] an action was initiated to

secure a judgment in the US against the Republic of Argentina for torturing
its own citizens. But the matter floundered upon the doctrine of sovereignty.
On the same parameters of thinking, acts of International terrorism are not
actionable under the Alien Tort Claims Act.[223] However, there was a
different trajectory traversed by the court in Kadic v. Karadzic.[224] The
court held that claims based upon official torture and summary execution did
not exhaust the list of actions that may be covered by the Alien Tort Claims
Act, and that allegations of genocide, war crimes and other violations of
International Law could be covered.
Treaty Law
Article IV(2) of the US Constitution provides that All treaties made, or
which shall be made with the authority of the US, shall be the Supreme Law
of the Land, and the judges in every state shall be bound thereby, anything in
the Constitution or the laws of any state to the contrary notwithstanding.
Article II of the Constitution notes that while the President has the power to
make International Agreements, he may only ratify them if at least two-thirds
of the senate approve. An exception to this rule is the institution of executive
agreements. The President makes such agreements on his own authority, and
in turn constitutes treaties within the framework of International Law. In US
v. Pink,[225] the Supreme Court, in a case that came up after the 1933
Litinov Agreement that indicated the American Recognition of the Soviet
government, held that such executive agreements possessed the same status
and dignity as treaties made by the President with the advice and consent of
the Senate. Though some Senators have now and again taken the position
that certain vital international agreements ought to be submitted as treaties
for the Senate's advice and consent, the popular view is that a
Congressional-Executive agreement may be used every time a treaty could
be.[226] Under the prevailing view, the opposite is true as well, i.e., a
treaty may be used whenever a Congressional-Executive agreement could
be.
As for the implementation of treaty law, America follows the principle of
self-executing and non-self-executing treaties.[227] Self-executing treaties
operate automatically within the domestic sphere, without any municipal
legislation. Non-self-executing treaties require the passage of enabling acts
prior to their operation in the domestic sphere. The Courts distinguish
between the two by a perusal of the practical content in both treaties. In
Edye v. Robertson,[228] the Supreme Court held that those treaties in which
certain provisions are capable of enforcement as between private parties in
62

the courts of the country are deemed to be in the same category as the other
laws of the Congress.
This issue was re-examined in 1952 in Sei Fuji v. California,[229] where
the core issue raised was as to whether the UN Charter was a self-executing
treaty, and, by virtue of such, part of the law of the land, which would
supersede the inconsistent local statutes. The court held that in the process
of determining whether a treaty was self-executing or otherwise, regard
must be had to the treaty itself in order to understand the underlying
intentions of the signatories, and also to the traveaux preparatoires. The
court ultimately concluded that the UN Charter was not self-executing,
stating that the Charter did not purport to impose legal obligations on the
individual member nations or to create rights in private persons.
In Diggs v. Schultz,[230] a similar question came up. The Byrd Amendment
in the USA, legalized the import of strategic materials. This was forbidden
by a binding UNSC Resolution. The court ultimately held that the resolution
was violated by way of the amendment so made, but also stated that the
Congress may choose to disregard a specific treaty, and that nothing could
be done to alter that. However, the US was liable internationally for the
breach of the rule it was bound by.[231] Nevertheless, the general
presumption is that the Congress will not legislate in a manner contrary to
the treaties that the US is signatory to.[232] The Courts also follow a
generic rule of interpretation, in that where an act and a treaty exist on the
same subject, the courts will seek to construe the both of them in order to
give effect to both, so that one is not contrary to the other. If, however, there
is an inconsistency of such nature that no reconciliation is possible, the one
that is later in time shall prevail over the prior one.[233] In applying this
line of thinking, in the case of US v. PLO,[234] when as per the Anti-terror
law in force at the time, all PLO offices in the US were sought to be closed,
the question as to whether the PLO mission in the UN had to be closed or
not was answered. The Court held that there was no intention whatsoever to
violate the UN Headquarters Agreement in unequivocal terms.
In the decision of Breard v. Greene,[235] the US Supreme Court held that
there needs to be accorded respectful consideration to an international treaty
by the relevant international court. In deciding thus, the court relied upon the
ruling of the ICJ in Paraguay v. USA,[236] upholding the Constitution as the
Supreme Law of the Land, and declaring that International Treaties bore the
same status as statutes, under the Constitution.
Canada
Canadian law states that customary International law forms a part of its
63

domestic legal system. In the Reference Re Secession of Quebec

decision[237] the Canadian Supreme Court noted the importance of
drawing upon International Law to determine the rights and obligations of
actors within the Canadian Legal system. As for treaties, Canada follows
transposition. This was laid down in Lord Atkins opinion, in Attorney
General for Canada v. Attorney General for Ontario.[238]

Australia and New Zealand

The doctrine that customary International Law forms a part of domestic law
has been reaffirmed in a number of decisions.[239] As for treaty law and
domestic law, the Australian High Court in Minister of State for
Immigration and Ethnic Affairs v. Ah Hin Teoh FC,[240] held that
Australia subscribed to the traditional doctrine of incorporation, in that the
provisions of a treaty do not form a part of Australian law unless such
provisions have been incorporated into Municipal Law by way of a statute,
in keeping with the basic rule of separation of powers.[241] It has been held
that if a statute or a subordinate legislation is of an ambiguous nature, the
courts ought to favour that construction which accorded with Australias
duties and obligations under the treaty in question, to the international
world.[242] This was deemed to be a canon of construction and did not
amount to an incorporation of international law into municipal law.[243]
The Court also went on to hold that merely ratifying a treaty was sufficient
to constitute a foundation for legitimate expectations, that administrators
would act in conformity with the unincorporated, but ratified convention.
Germany
Article 25 of the Basic Law of the Federal Republic of Germany, states that
the general rules of Public International Law are an integral part of the
federal law. It goes on to hold that they shall take precedence over the laws
and shall directly create rights and duties of the inhabitants of the federal
territory.[244] This provision has sparked off much controversy, in the form
of debates mostly as to whether international law would invalidate any
inconsistent municipal legislation, and, indeed, whether international rules
could override the constitution. The use of the phrase general principles of
public international law has led to myriads of problems, because there
often arises a doubt as to whether this means all the principles of public
international law, or only treaties.[245] As regards treaties, practice shows
that the German federal courts are to regard them as superior legislation, but
at no cost can they go against the Constitution. Article 59 of the Basic Law
64

holds that treaties which regulate the political relations of the federation, or
relate to matters of federal legislation shall require the consent or
participation, in the form of a federal law, of the bodies competent in any
specific case for such federal legislation. After this, these treaties will be
treated as incorporated into the German legal system, but with a status no
higher than that of Federal Law. If such law is found to encroach upon the
rights of an individual, a constitutional complaint shall lie to challenge the
law.
The Netherlands
Treaties in the Netherlands need prior approval from the Parliament before
they become binding, as per Article 91(1) of their Constitution. If there is
any conflict with a treaty provision and the Constitution, such provision may
be approved by the Chambers of the Parliament, provided that at least 2/3 of
the votes are in favour. As per Article 94, any statutory provisions in force
in the Netherlands shall not be applicable if such provision is found to be
contrary to treaties that are binding on Netherlands, or to resolutions that are
imposed by international institutions.[246] Customary law does apply
internally, although statutory law always prevails where there is any conflict
between the two.[247]
France
As per the French Constitution, treaties that are duly ratified and published
shall operate as part of the domestic legal system.[248] The President of the
Republic ratifies the treaties, but only in the case of commercial treaties and
those that pertain to international organizations. With the passage of the
legislation, the treaty is deemed a part of the domestic legal set up. Article
55 of the Constitution holds that duly ratified treaties or agreements upon
publication shall override domestic laws, subject to the application of the
treaty or agreement by the other parties.[249] A French court is completely
capable of declaring a statute inapplicable for conflicting with an earlier
treaty.[250] At any point, however, the supremacy of International
Agreements does not extend to constitutional provisions.
The European Union and Select States in the Union
The European Court of Justice has held that community law has supremacy
over ordinary law,[251] and over domestic constitutional law, too.[252] In
Belgium, legislation is needed for the incorporation of all international
agreements, as per Article 68 of the Belgium Constitution. In Norway,
municipal law supersedes all treaties. In Greece, Article 28(1) of the
Constitution indicates that the generally accepted rules of International law,
and International conventions, shall all be a part of Greek Law, from the
65

time they enter into force. It also states that the applications of the rules of
International Law and International Conventions shall be applicable to
aliens subject to the precondition of reciprocity from the concerned states
towards the aliens of Greek origin. As for treaties, Article 36 indicates that
no provision shall have effect without the Parliaments sanction. As for
Austria, the generally recognized rules of International Law are accepted as
part of Austrian law. Obligations arising out of a law in violation of a prior
treaty are internally valid, albeit an international tort.
South Africa
The 1993 interim Constitution of South Africa, under s.231(4) states that
customary International Law is binding on the Republic shall form a part of
the Domestic law of the Republic, unless it is inconsistent with the
Constitution, or any act of Parliament. This indicates that the principle of
stare decisis does not apply to customary international law. Originally,
where treaties were concerned, an Act of Parliament was necessary in order
to incorporate the agreement into the Domestic legal realm. This position
has changed. Ratification is now a Parliamentary function,[253] while the
signature of treaties is a function of the President.[254] S.231(3) states that
such international agreement shall be binding on the Republic, provided the
Parliament expressly provides and such agreement is not inconsistent with
the Constitution. This is indicative of South Africas change from the British
system, to the civil law tradition.
Israel
As far as Israeli practice is concerned, it would be right to surmise that it is
more or less on the lines of the UK. Municipal laws are presumed to be
consistent with international law, and in event of any form of inconsistency,
municipal law prevails. In the famous Eichman case,[255]the Supreme
Court of Israel succinctly laid down the fact that the relationship between
International Law and Municipal Law is predominantly governed by three
rules:
1. The principle becomes incorporated into the municipal legal realm and
a part of that law, only after it has achieved general international
recognition.
2. Where there is a conflict between International Law and Municipal
Law, the courts have a duty to give preference to, and to apply
Municipal Law.
3. Any municipal law open to equivocal construction should be construed
in accordance with Public International Law.
66

Russia
As per Article 86 of the Russian Constitution, the President negotiates and
signs treaties and the ratification documents. Under Article 106, the Federal
Council (the upper Parliamentary Chamber) must consider all the Federal
Laws adopted by the State Duma (the lower Parliamentary Chamber) that
concern the ratification and denunciation of agreements. The Constitutional
Court is given power to review the constitutional validity of treaties that are
not yet in force, as under Article 125(2), and treaties that are in conflict
with the Constitution and are not to be given effect, as under Article 125(6).
As per Article 1594), the generally recognized principles and norms of
international law and the international treaties of the Russian Federation
shall all constitute a part of its legal system. If any international treaty of the
Russian Federation establishes other rules than those stipulated by the law,
the rules of the International Treaty shall apply. This indicates that both,
treaty law and customary law are incorporated into Russian Law. Treaty
laws enjoy a higher status than customary law.[256] The Constitutional
court subscribes to this view.
Japan
As per Article 73(3) of the Japanese Constitution,[257] the Cabinet is
authorized to conclude treaties with the prior or subsequent approval of the
Diet, though executive agreements may be entered into without such
approval, usually by way of a simple exchange of notes. A treaty is
promulgated by way of a publication in the official gazette, as soon as the
Diet approves of it, and the Cabinet ratifies it as under Article 7. The fact
that Japan follows the incorporation principle, is evidenced by Article
98(2) which holds that all treaties concluded by Japan and all established
laws of nations shall be faithfully observed.[258]
China
Chinese scholastic opinion has never accepted the supremacy of
International Law over municipal law.[259] Chinese practice depicts
supremacy being accorded to municipal law, over and above its obligations
as owed under International Law.
India
Article 51(c) of the Constitution of India stipulates that the state shall
endeavour to foster respect for international law, and treaty obligations in
the dealings of organized peoples with one another. The use of the phrase
international law implies customary international law, and treaty
obligations covers treaties alone.[260] Article 51 falls within the ambit of
Part IV of the Constitution of India, which is the non-enforceable portion of
67

the constitution, called the Directive Principles of State Policy. Given that
such rules are non-enforceable, the extent of weightage they have may seem
questionable. Nevertheless, in understanding this provision of law, and the
allied judicial precedents, it stands clear that India follows a dualist system.
Prior to the adoption of the Constitution, India followed the erstwhile
British system; now arises the question as to whether this position has been
modified, or retained as it was.
The constitution of India did not modify the position, given that it provided
for the continued operation of the law in force immediately preceding the
commencement of the Constitution. Municipal courts have the right to apply
the provisions of a treaty if it is incorporated into the domestic legal regime,
and customary law as already being a part of the law of the land. As long as
the customary law is not in any manner inconsistent with the domestic law
of India, it shall be construed to be a part of domestic law. As for treaties,
India is more or less part of the British dualist system. In State of Madras v.
G.G.Menon,[261] the Supreme Court held that the Indian Extradition Act,
1903 had been adopted, but the Fugitive Offenders Act of the British
Parliament had been left alone. The Court stated that the provisions of the
Act could only be made applicable to India by incorporating them with the
appropriate changes into an act of Indian Parliament and enacting on Indian
Fugitive Offenders Act. Since there were no laws on the lines of the act, the
Fugitive Offenders Act could not be held to have force in India by way of
Article 372 of the Constitution. Article 253 of the Constitution holds that
notwithstanding anything in the foregoing provisions of Chapter XI of Part
X, the Parliament has the power to make any law for the whole or part of the
territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at an international
conference, association or other body. But, it would be wrong to hold that
every treaty in need of implementation would need legislative aid.[262]
International treaties and conventions do not automatically become a part of
national law in India, and hence, require legislation to be passed by the
Parliament for the implementation of international law in India. In the light
of this fact, the Indian judiciary, though empowered to adjudicate and not
make legislations, has, (and can) actively interpreted Indias obligations
under international law, by reading into the constitutional provisions, the
provisions of international law in the course of passing a decision in a case
concerning issues of international law.[263] With the help of judicial
activism the Indian judiciary has played a rather appreciable, proactive role
in implementing Indias international obligations under International
treaties. This has happened especially in the field of human rights and
68

environmental law.
The government of India is vested with executive powers to enter into and
implement international treaties under Articles 246 and 253 read with Entry
14 of List I of the Seventh Schedule of the Indian Constitution.[264] The
executive powers of the government of India are derived from the
legislative power of the Union of India. In this regard, it is to be noted that
the executive powers of the Union and State governments are co-extensive
with their respective legislative powers.[265] The executive powers of the
Union of India are specifically vested in the President under Article 53 of
the Indian Constitution. Aside of vesting the executive power, this provision
also provide for the exercise of such executive power either by him directly
or through the officers subordinate to him in accordance with the
Constitution. Additionally, it is relevant to read Article 73 of the Indian
Constitution, which confers upon the government of India executive powers
over all subjects in which parliament has legislative competence.
The Supreme Court in Visakha v. State of Rajasthan,[266] took recourse to
International Convention for the purpose of construction of domestic law.
The Court held that in the absence of domestic law occupying the field to
formulate effective measures to check the evil of sexual harassment of
working women at all work places, the contents of International
Conventions and norms are significant for the purpose of interpretation of
the guarantee of gender equality, right to work with human dignity in
Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards
against sexual harassment implicit therein. Any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must
be read into those provisions to enlarge the meaning and content thereof, to
promote the object of the Constitutional guarantee.
In Jolly George Varghese and Another v. The Bank of Cochin,[267] the
Court dealt with the emerging links between domestic law and human rights
by reconciling Article 11 of the International Covenant on Civil and
Political Rights (ICCPR) with Contractual provisions under municipal law
to protect human rights of a the civil debtor whose personal liberty was at
stake due to judicial process under Section 51 (Proviso) and Order 21, Rule
37, Civil Procedure Code. In ADM Jabalpur v. Shivakant Shukla,[268]
the Supreme Court amplified the scope of Article 21 (right to life) of the
Indian constitution by referring to Articles 862 and 963 of the Universal
Declaration of Human Rights.
Recognizing customary International Law as part of the Indian domestic
legal system, in Vellore Citizens Welfare Forum v. Union of India and
69

Others,[269] the court held that the precautionary principle and the polluter
pays principle were part of the environmental law of the country, stating that
even otherwise, once these principles are accepted as part of the Customary
International Law there would be no difficulty in accepting them as part of
the domestic law. It is almost accepted proposition of law that the rules of
Customary International Law which are not contrary to the municipal law
shall be deemed to have been incorporated in the domestic law and shall be
followed by the Courts of Law.
Justiciability and Acts of State
Any issue is deemed justiciable if it can be tried by a court of law, with due
accordance afforded to the law.[270] By general practice, all that falls
within the ambit of the executive, are not justiciable before a court of law.
In the words of Shaw, any test as to whether a matter is, or is not justiciable
involves an illumination of that grey area where the spheres of executive
and judiciary merge and overlap.[271] This is particularly brought to fore in
the context of the acts of states.[272] An act of state is the act of the
executive in relation to other states. In pertinence to International Law and
Municipal Judicial authorities, it refers to the norm that one state cannot
exercise jurisdiction over another state. For domestic executive acts, a court
does not deal with any exercise of sovereign power. For foreign executive
acts, courts refuse to intervene.[273] This is, however, not a matter of
discretion, but one of inherence and judicial power. It has been held that
judicial review would be inappropriate in cases where matters fell within
the ambit of diplomacy, and were it that the judiciary intervened, it would
lead to serious consequences.[274] Sometimes, legislation is immensely
useful in determining if an act is justiciable or otherwise. A case in point is
the UK State Immunity Act, 1978, which removed sovereignty for
commercial transactions.[275] Non-justiciability functions as a bar,
disallowing an issue from being raised or proved.

70

Chapter 4- Subjects of International Law

Every legal regime comprises entities that are clothed with rights, duties
and obligations under the realm of the law in question. These entities are the
subject of the law, i.e., the very reason the law exists, the very factors that
the law seeks to govern. Such subjects are considered to be legal persons in
that they are deemed as persons in the eyes of law. As a consequence of
being drubbed possessive of such a status, they are capable of suing and
being sued under the law. They are conferred rights and duties under the
law, which, albeit a constant factor under most legal regimes, the actual
nature of the rights and duties conferred depend largely upon the nature of
the law itself.
Affording such a status to entities is called the granting of legal personality,
or the ascription of legal personality. This is essential to the very existence
of these entities, as devoid such recognition, the concerned entity would
lose out on the right to enforce claims. At the municipal level, individuals
and corporations are recognized as being possessive of a distinct
personality of a legal nature, the terms of which are prescribed by the
relevant legislation.[276] The legal regime in a certain place is the
determining factor as regards the nature and scope of personality, which in
turn is the determinative factor of status, capacity and legal competence of
the entity.
In international law, personality involves a tightly woven weft of rights and
duties, as afforded under International Law, and the ability to enforce
claims. Due regard needs to be had to the intricacies of International Law in
order to comprehend the nature of the capacity and competence so accorded.
Some writers opine that though the quality of responsibility for the violation
of a rule co-exists with the quality of enforcing a complaint against a
breach, an entity having either quality is deemed possessive of legal
personality.[277] Other writers hold that legal personality is vested based
upon the element of enforceability of rights in the International sphere.[278]
In the international level, it must be remembered that personality is not
confined only to being what the state possesses, but also to the extent of
acceptance the community wields in relation to such personality. Community
acceptance hinges on several factors, to name one inter alia, the nature of
personality enjoyed by the entity.
71

For a long time, it was believed that only states are the subjects of
International law, until a while ago when it was believed that states are the
primary subjects of international law, to the rapidly evolving position
evinced today, in that there are other subjects in international law, with a
position on par with that of a state. The notion that states are the primary
subjects of international law arises from the fact that they seem to fit the bill
by seeming to be the most complete subject, being possessive of a more or
less stable authority or governing regime over a defined territorial expanse
with its own population. Though these facets are indeed lacking where
individuals, international organizations and the newly emerging set of nonstate actors are concerned, it is not something that precludes the conferment
of a legal status for these latter entities. One cannot ignore the burgeoning
sphere of human rights that confers recognition of individual people as part
of International law, or the cement that the United Nations and other
transnational organizations world over lends to the wide cross section of
cultures and races constituting states, or even the wanton mushrooming of a
global terror network independent of affiliation to states. Thus, within the
umbrella-term of subjects, are included states, individuals, international
organizations and non-state actors.
Understanding Legal Personality
Personality is of two kinds, namely, objective and qualified. Objective
personality implies the case where the entity enjoys international rights and
duties, and its status operates erga omnes. Qualified personality, also
deemed conditional personality, as the name suggests, is operative only on
the condition that consent is offered, and thus, operates only in personam.
States still retain the status of being major subjects of International Law.
Personality can be acquired by a combination of treaty provisions and
recognition or acquiescence by other international persons.
States
The Restatement (Third) of Foreign Relations explains that under
international law, a state is an entity that has a defined territory and a
permanent population, under the control of its own government, and that
engages in, or has the capacity to engage in, formal relations with other such
entities.[279] This definition is fundamentally consistent with the definition
provided in the Montevideo Convention on the Rights and Duties of States,
which provides that the State as a person of international law should
possess the four qualifications, namely, a permanent population, a defined
territory, government and the capacity to enter into relations with the other
States.[280] Scholars world over, especially from the United States, deem
72

this definitive provision as a part of customary international law.[281] The

elements spelled out above are often deemed the essential prerequisites, or
essential conditions for an entity to be regarded as a state under
international law.[282]
In Lauterpachts words, the orthodox positivist doctrine has been explicit
in the affirmation that only states are subjects of International Law.[283]
Albeit a predominant subject, International Law has weaned off from this
rigid line of thinking. The Holy See (1871-1929), insurgents and
belligerents, international organizations, chartered companies and entities
such as the league of cities, were all deemed subjects of International Law
at various points of time.[284]
The Creation of Statehood
The actual creation of statehood mixes both fact, and law. The creation of
states poses a plethora of questions, as to whether such creation is legal or
factual, and how the interaction as between the criteria of effectiveness and
other related legal principles may be reconciled. Terra nullius is no longer
in existence, as a result of which states may only be created as a diminution,
disappearance or merger of existing states.[285] As to what an entity must
possess in order to constitute a state in International Law, reference must be
had to Article 1 of the Montevideo Convention. In order for an entity to be
deemed a state, and thereby an international person, it must possess the
following:
a) A permanent population
b) A defined territory
c) A government
d) The capacity to enter into relations with other states.
The state is commonly defined as a community that is comprise of a territory
and a population, subject to an organized political authority and a
population subject to an organized political authority and that such state is
possessive of sovereignty.[286] The form and nature of internal political
organization and constitutional provisions are facts, and are essential for the
determination of governmental sway over the population and territory.[287]
Of course, the existent rules are not exhaustive given that state practice is
peppered with instances of self-determination and recognition being
accorded therein. A permanent population is naturally a necessary corollary,
as, if there are no people to govern, there really is no state in the actual
sense of the term. There is no minimum number of people as such, to
constitute a state.[288] Territory is also an essential element, because there
is no state in existence if there is no geographically delimited area in its
73

control, to be claimed as its own. Territoriality is connected with

sovereignty, in that it constitutes the geographical aspect of the geopolitical
realm. Albeit a pre-requisite, territoriality does not demand that fixed
boundaries are mandatory for the entity to be a state, because a state
embroiled in a boundary dispute is still recognized as a state in International
Law.[289] As long as there is a territory under the control of a governmental
authority, there is enough to fulfill the prerequisite of territoriality. The State
of Palestine as declared in 1988 in Algiers, was not recognized because the
Palestinian organization did not control any territorial area that they
claimed.[290] Albania, during the entire span of time prior to the First
World War was afforded recognition despite being deeply embedded in the
throes of a boundary dispute.[291] On a more recent note, Israel is a
recognized state despite the boundary dispute it is privy to.[292] Kosovo,
which in 2008 unilaterally declared independence, has a few states in the
international community in support of its status as a state, although Serbia
claims sovereign rights over the territorial expanse that Kosovo is.[293]
A government is necessary in order for any political society to function
reasonably and effectively. Opinions have been expressed as to how a
government is not really a prerequisite, but is deemed an indication of the
existence of a coherent political structure and society.[294] The origin point
of this prerequisite dates back to the 19 Century precondition of
civilization as a criterion for statehood. It has precious little to do with
attaching due regard and importance for sovereignty, irrespective of
administrative conditions.[295]
The criterion of effective exercise of control by a government has been
modified. Croatia, Bosnia and Herzegovina have been accorded recognition
and membership in the UN despite being faced with a situation where nongovernmental forces have controlled the territories in question. The capacity
to enter into relations with other states is another listed essential to be
followed for the attainment of statehood. This is not exclusive to sovereign
nations. International organizations need such a capacity to enter into legal
relations, too. It is an essential requisite that the state be able to create such
relations with other states, as this evidences sovereignty and independence
in managing its external affairs. Independence is crucial to statehood and is
a formal statement that the state is not subject to any other sovereign
authoritys rule, and is unaffected by any factual dependence upon other
states, or by submission to International Law.[296]
There needs to be a mix of both, actual and formal independence. This was
the crux of the issue raised in the context of the grant of Independence by
th

74

South Africa to its Bantustans. A sizeable quantum of Transkeis budget

came from South Africa, and Bophuthatswana was split up into a series of
areas, all divided by South African territory.[297] Such independence was
declared invalid by both, the Organization of African States, and the United
Nations, and aside of South Africa, no other states recognized these entities.
Lithuania was originally unlawfully annexed by the Soviet Union in 1940,
and on 11 March, 1990,[298] it declared its independence unilaterally.
Given that the annexation itself was not recognized de jure by the Western
States, and was accorded only de facto recognition, this unilateral
declaration sparked off several politically sensitive debates. Finally,
recognition was afforded in 1991, along with the Soviet Union and a
multitude of other Baltic States. Kosovos unilateral declaration of
Independence in 2008 did not go down too well with Serbia. With three of
the five major states constituting permanent members of the UNSC- US,
England and France backing Kosovo is still in limbo with vehement
opposition from Russia, Serbia and other states. The ICJ, in July-August,
2010, went on to hold that Kosovos declaration of independence did not
violate any rules of International Law.
However, despite all these factors being present in the Montevideo
Conventions definition of the term state can at best only be termed
cadaverous, or as a mere outline. There has been no mention of sovereignty
being a requirement, although scholars perceive that this may be read into it
in the course of understanding the term government. Another issue that
comes to fore is that an entity is accorded statehood only when it displays
capacity to interact with other states, which in turn can be states only if they
can have relations with other states, it displays a vicious circle of sorts.
Self Determination and Statehood
Self-determination implies that nations have the right to freely decide upon
their sovereignty and their political status without any form of external
compulsion or interference. Self-determination as a criterion for statehood
has been found to exist in practice. This has, consequently, resulted in the
acceptance of a lower level of effectiveness. The principle evolved by
leaps and bounds after the First World War. President Woodrow Wilson
actively campaigned for its recognition as a legal principle, but the League
of Nations did not afford recognition to the rule. Nevertheless, several
treaties came forward to recognize the principle. The Aaland Island case,
[299] evidenced the then prevalent notion that self-determination was
deemed only a political concept.
As the Second World War came to a close, states emerged from under the
th

75

thumb of colonial rule by the dozen. Self-determination had, in effect,

secured a position as a catalyst for the achievement of independence of
states under colonial rule. The UN Charter, drafted when the Second World
War ended, recognized self-determination under Article 1(2). The
Declaration on the Granting of Independence to Colonial Countries and
Peoples in 1960[300] recognized self-determination as a matter of right.
[301]
The erstwhile Belgian Congo, which attained independence on 30 June,
1960, also exhibits the inclusion of self-determination as a criteria for
achieving statehood. What came about was a widespread tribal fight, which
in due course of time, spread to the capital city. In time, the Force Publique
had mutinied, Belgian troops had intervened and the province of Katanga
had declared secession. Congo literally suffered a governmental breakdown
of sorts, which, though, never precluded the accordance of recognition by
the International comity and membership in the UN. It is worthy to take note
of the presence of two different factions before the UN, seeking to be
accepted as the legitimate representatives of Congo- one from the head of
state, and one from the Prime Minister, of which the former was accepted.
[302] Rhodesia is another example. A UN General Assembly Resolution
denied the legal validity of the unilateral declaration of independence on 11
November, 1965, and called upon member states not to recognize Rhodesia.
[303] States obeyed the UNs requirements, and Rhodesia was not
recognized. A civil war resulted in the creation of Zimbabwe, a state that
was granted recognition. Rhodesias case evidences a situation where
recognition was deemed a precondition for statehood. On a different note,
useful regard may be had to Guinea-Bissau, the erstwhile Portuguese
colony. A UN Special Mission was dispatched to the liberated areas of the
territories in 1973. It went on to conclude that the colonial power had lost
effective control over large portions of the territory. PAIGC, the local
movement, had control over the area amounting to a quantum between
2/3rds and 3/4ths, and was afforded by foreign observers and inhabitants
alike. On 24 September, 1973, the PAIGC proclaimed that Guinea-Bissau
was an independent state. Subsequently, in a General Assembly resolution,
[304] several states affirmed the validity of this declaration. However,
several western states denied that the criteria of statehood had been
fulfilled. Since about ninety-three states voted in favour of the Resolution,
their view prevailed. Judicial opinion followed the same trend.[305]
As a natural consequence, it would be right to accept self determination as a
criterion of statehood, because otherwise, it would result in the obviation of
statehood. The European Community adopted guidelines on the recognition
th

th

th

76

of New States in Eastern Europe, and the Soviet Union on 16 December,

1991.[306] This crystallized and presented a common position on the
recognition of new states, referring to self-determination, along with the
need to respect the rule of law, democracy and human rights. Recognition of
the state implies the accordance of acceptance, of certain factual situations
and endowing them with legal significance. Briefly, there are two theories
of recognition, the declaratory and the constitutive theory. The declaratory
theory maintains that recognition is merely perfunctory in nature, in that it
takes a political colour, as opposed to a legal one. The constitutive theory
purports that recognition is a factor instrumental in creating the state.
Recognition may be understood to hold a rather integral relationship with
the criteria of statehood, in that the more overwhelming the scale of
recognition, the lesser a demand there shall be in terms of objective
demonstration of adherence to the criteria concerned. Conversely, the lesser
the extent of recognition, more attention will be given to the proof of actual
adherence to the criteria.
Extinction of Statehood
The extinction of statehood may occur generally as a consequence of
mergers, absorptions or annexation. The international community needs to
be cautious in accepting the dissolution of a state. The disappearance of a
state is a matter of fact, one that is conditioned by the legal realm, which in
turn apportions legal consequences. Governments easily and generally
disappear, but it is a whole lot rarer for a whole state itself to become
extinct. Because international law comes down heavily on any use of force
whether external or internal,[307] the only way a state may pale into
extinction by way of consent. The Republic of Yemen was created as a
merger of North and South Yemen, in May 1990.[308] Czechoslovakia
dissolved in January, 1993, establishing thereby the Czech Republic and
Slovakia, which is evidence of the dissolution of the erstwhile state,
resulting in the creation of a new one. It is necessary to note that a
continuation of a state does not tantamount to the extinction of the
predecessor state. Russia and India are examples of this. Having emerged
from the USSR, what occurred to Russia was only a case of dismemberment
of other entities, leaving Russia as the remnant that emerged as a
continuation from where the USSR left off.[309] India emerged as the
continuation of India and Pakistan, while Pakistan was a new state.[310]
Self-determination has consistently been used as a means to protect
sovereignty and territorial integrity.[311] Where an entity has actively begun
recognizing itself as an entity possessing such attributes, and seeks to
th

77

determine its own status as it ought to exist in the International anarchy, selfdetermination is their ultimate aim, an aim that needs to be taken into
consideration in their pursuit of acquiring statehood.
Fundamental Rights and Duties of States
States in the anarchical realm mostly endeavour to function in a manner most
befitting the need for the maintenance of peace and order. As a consequence
of being subjects of the International Legal Realm, states are clothed with
rights and duties. In construing these fundamental rights and duties, it is a
fact worthy of mention, that the rights a state possesses, form the very duties
it owes to other states in the International Realm. Some of these rights and
duties are thus enumerated:
Independence. Sovereignty and independence underlie the very crux of a
states existence. The term independence was defined in the Draft
Declaration on the Rights and Duties of States, 1949, prepared by the
International Law Commission, to be the capacity of a state to provide for
its own well-being and development, free from the domination of other
states, providing it does not impair or violate their legitimate rights.[312]
At all points, however, it is important to remember that by subjecting itself
to the rule of International Law, a state does not compromise on its
independence. Political or economic dependence also does not imply that a
state forgoes its independent status, unless such state has been forced, or
compelled to submit to the demands of the superior state. In the AustroGerman Customs Union case,[313]Judge Anzilloti noted that any
restrictions upon a states liberty, whether emerging from customary law or
treaty obligations, do not in any way affect its independence. This is as long
as such restrictions do not place the state under the legal authority of another
state.[314]
In the Nicaragua case,[315] the ICJ states that in International Law, there
are no rules as may be accepted by the states concerned, by treaty or
otherwise, whereby the level of armaments of a sovereign state can be
limited, and this principle is valid for all states without exception. In the
Legality of the Threat of Nuclear Weapons case,[316] the Court held that
state practice shows that the illegality of the use of certain weapons as such
does not result from an absence of authorization, but on the contrary, is
formulated in terms of prohibition. Essentially, International Law permits
the exercise of such rights unless otherwise constrained by an explicit rule.
Independence as a right gives way to several other rights and duties, such as
the right to exercise jurisdiction over its territory and population, the right to
engage in self-defense. As a necessary corollary, a duty not to intervene in
78

the internal affairs of other sovereign states exists. This was affirmed in the
1970 Friendly Relations Declaration, and arises out of Article 2(4) of the
UN Charter. Non-intervention is essential in order to maintain the balance of
power in the International arena.[317] A state, at no point, can so much as
purport to enforce its laws on the territory of another state without consent
of such other state.
Equality of States. As a consequence of state sovereignty, it is natural that
all states be treated equal, given that the International system hinges on
anarchy. This equality is ensured irrespective of the size, power and age of
the state. The UN recognizes this notion by allowing one vote per state in
the General Assembly. The 1970 Friendly Relations Declaration also
purports the same notion. The underlying philosophy of the equality of states
norm is that there needs to be a balance of power in the international realm.
If every state is sovereign it is mandatory that no state be deemed superior
to the other, and no state can be allowed to exercise rights over another.
Albeit theoretical, the practical manifestations of the rule differ greatly.
Major states always have an influence, purely because their concerns are
much wider, much deeper, and their powers are more effective. The UN
maintains the equality of states with the one-state-one-vote policy, but still
maintains the veto power in the Security Council, exclusively for the USA,
UK, China, Russia and France, which seems some sort of an anathema to
what the notion of equality stands for.
Peaceful Coexistence. Peaceful co-existence refers to a principle that was
formulated by the USSR, China, and a few other developing nations. The
Non-Aligned movement during the Cold War, in 1954, crystallized peaceful
co-existence as one of the five major principles.[318] As an extension of the
rule of prohibition of a use, or even the threat of use of force, it is clear that
peaceful coexistence emerges as a natural corollary. The UN has afforded
this principle recognition.[319] The UNGA Res 3314 prohibits
aggression, thereby harping on the key rule of peaceful co-existence.
Kinds of States
Albeit ultimately a subject of international law, states are essentially of
different kinds. Understanding these differences is merely to decipher the
internal workings of each state, and to understand the impact of International
Law on each of these entities. Aside of differing with respect to cultures and
inhabitants and other socio-economic aspects, states differ greatly in their
political structure, which in many ways, defines their status in the
International Realm. The most common kinds of states are hereinbelow
described:
79

Confederations. A confederation refers to an association of sovereign

states, which, by way of a treaty have chosen to delegate certain aspects of
their own competences and powers to a common institution administering
all the states, with a view to coordinate their policies in many spheres,
without constituting a new state supervening the member states. A
confederation respects the sovereignty of its members and the treaty
constituting it can only be changed by way of unanimous agreement.
Common examples of confederations include Canada, Switzerland, Iroquois
and the European Union. A recent trend has been detected in Belgiums
trajectory as a state, where scholars world over have indicated the
evolution of Belgium as a confederation.[320] Usually created by way of a
treaty, most confederations are known to adopt a common constitution. Most
confederations are established for the purpose of dealing with critical
issues such as defense, foreign affairs or a common currency. Generally, the
central government that is created by the treaty between the states, is
required to provide support for all members. The nature of the relationship
among the states constituting a confederation varies considerably, depending
on the very substratum upon which the confederation itself is built. The
relationship between the member states, the central government and the
distribution of powers among them, are all equally highly variable, since all
of this depends largely upon what nature of activity underlies the creation of
the confederation. A loosely created confederation is more or less similar to
intergovernmental organizations, while tighter confederations may resemble
federations.
Federations. A federation is characterized by the union of partially selfgoverning states or regions that are united by a central or federal
government. In a federation, the self-governing status of the states
comprising it is quintessentially constitutionally ingrained and hence, may
not be altered easily enough by a unilateral decision of the central
government. The governmental structure of a federation is called federalism.
A classic example of a federation is the United States of America, with fifty
states comprising it. Another prominent example is the government of
Germany with sixteen federated Lnder is an example of a federation.
Federations may be multi-ethnic, comprise of multiple races and even of
linguistic mixes, and may, in terms of geographical expanse, cover a large
area of territory. However, it is important to note that none of these are
necessarily the case, and are not prerequisites to fuel the creation of a
Federation. Federations are fundamentally founded on what is called, an
original agreement, forged between a number of sovereign states based
purely upon mutual concerns or interests.
80

Unitary States. A unitary state is a state with a single, centralized, national

tier of government, along with one or more self-governing regions as is seen
in some cases. As regards a unitary state, the general notion is that,
regardless of the actual status of any of its parts, its entire territory
constitutes a single sovereign entity or nation-state, and that by virtue of this
the central government exercises sovereignty over the whole territory as of
right.
The basic difference between a federation and a unitary state is that in the
latter, the autonomous status of self-governing regions exists by the
discretion of the central government, and may, at its own discretion, be
unilaterally revoked. It is commonplace for a federation to be brought into
being by agreement between several formally independent states, but in a
unitary state, self-governing regions are often created by way of a process
of devolution, where an erstwhile centralized state agrees to grant autonomy
to a region that was originally entirely subordinate. In a nutshell, thus, it
would be right to surmise that federations are established voluntarily from
'below' while unitary states evolve from 'above'. Sovereignty resides in the
hands of a single central authority, in the Unitary State. In a federation
sovereignty is often regarded as residing notionally in the component states,
or as being shared between these states and the central government.
Condominium. A condominium is said to exist when two or more states
exercise rights over a territory. An example of a condominium is New
Hebrides, over which France and England had control between 1914 and
1980. Austria and Prussia exercised rights over Schleswig-Holstein and
Lauenburg between 1864 and 1866; Great Britain and Egypt over Sudan,
between 1898 and 1955, and Great Britain and France over the Islands of
Canada and Endenbury after 1939.
Vassal State. A vassal state refers to a state that is subordinate to another,
or, under the suzerainty of another state. The vassal in these cases is the
ruler, instead of the state itself. Being a vassal most commonly implies
providing military aid and assistance to the dominant state when it is
requested to do so. It sometimes implies paying a tribute, but a state which
does so is essentially a tributary state. In the present day and age, more
common terms are puppet state, protectorate or associated state.
Protectorate State. A protectorate state entrusts its matters of security,
defense and external affairs to another state, and is not completely sovereign
when it comes to its own internal and external affairs. Its sovereignty is
taken by the country of which it becomes a protectorate state. A protectorate
state enters into an arrangement with another state under which, while
81

separate legal personality may be involved, separate statehood is not.

[321]An example of such an arrangement is Morocco, where the Treaty of
Fez, 1912, with France gave France the power to exercise sovereignty on
behalf of Morocco in all aspects of its international relations. However,
Moroccos position as a sovereign state has reinstated, particularly by the
ICJs announcement to such effect.[322] Protectorates cannot be confused
with a colonial protectorate, as it existed during the colonial period.[323]
Mandated and Trust Territories. Mandated and trust territories date back to
the times of the First and the Second World Wars. When the First World War
drew to a close, the Axis and the Russian empires met their demise. The
Allies then established a mechanism to deal with the colonies of the
defeated empires, avoiding annexation. The underlying notion of such
governance was the principle that the well-being and development of such
peoples form a sacred trust of civilization. Advantaged nations, in terms of
resources, experience and geographical position would take charge of the
people, in capacity of Mandatories on behalf of the League.[324] With the
collapse of the League of Nations, and then subsequently the Second World
War, the mandate system was transmuted into the United Nations Trusteeship
System under Chapter XII and XIII of the UN Charter.[325] Early instances
show that the trust territory of the Pacific, as was taken from Japan, was
placed in a category subject to the UN Security Council for security reasons.
[326] South Africa refused to place its mandated territory as a trusteeship
territory.[327] Germany, in and after 1945 is worthy of mention in this
regard. At the end of the Second World War, Germany was divided into four
occupation zones, with control in the hands of four powers, over Berlin. As
a state, of course, Germany continued in a manner quite like a situation of
legal representation, or an agency of necessity.[328] Germany gained full
sovereignty in 1952, subject to retained powers with the three Western
Powers. In 1972, the Federal Republic of Germany and the German
Democratic Republic established in 1954 by the Soviet Union in its zone,
recognized each other as sovereign states.[329] By 1989-1990, the
reunification of Germany became a much sought after aspiration, eventually
happening. With the progressive signature of treaties on economic,
monetary, social, unification and final settlements, by 1990, Germany
evolved as an independent state.
Association of States. States are known to have arranged themselves into
formal associations with one another. An association of such a nature does
not create a state in itself, but certainly impacts the international legal
regime. Some small states with frugal development have close relationships
with other states. New Zealand and the Cook Islands is an example of this.
82

Internal self-government is entwined with external dependence. The West

Indies is another example. Originally tied to the UK by way of the West
Indies Act, 1967, the states ultimately gained independence.[330] Other
examples include the Commonwealth of Nations, an association which links
together states with common interests. The SAARC, ASEAN, NATO,
SEATO and CENTO are all associations of states with a view to promote
regional interests and advancement. During the Cold War, several states
decided against taking sides in the hostile exchanges between the USA and
the USSR. This gave vent to the emergence of the Non-Alignment faction,
comprising of states that were not aligned to either camp, i.e., USA or the
USSR, during the period of the Cold War. With the dissolution of the Soviet
Union, and the emergence of the Russian Federation and other Republics
becoming independent, the Commonwealth of Independent States was
formed.[331]
Individuals
The inclusion of individuals as subjects of international Law is deeply
rooted in the emergence of the human rights law and international criminal
responsibility. Originally, only states were deemed subjects of International
Law, but the theory began waning with the understanding that individuals
were what constituted the state itself. Inherently entwined with the concept
of State Responsibility is the concept of citizenship. In the early days,
individual rights were only those that were ascribed, or granted to the
citizens of the State. However, this paved the way for issues such as
inclusion and exclusion, which boiled down to a segregation of rights, as
such, into those that could be enjoyed by a citizen, and those that could be
enjoyed by non-citizens. This segregation came up much after the initial
segregation as existent amongst the citizens themselves- i.e., women and
people from colonies. However, from before the United Nations, the
individual was steadily being recognized as a subject. Humanitarian law
was steadily being codified, with the ultimate aim of dispensing with the
effects of war on combatants and civilians, and aliens were given minimal
protection. The individual was, at all times, nevertheless, construed as an
entity associated with the state, and was not regarded as a subject of
international law. After the Second World War, this glaring defect in the
status of the individual was glaringly evident. It became clear that the state
was not the permanent and immediate guardian of the rights of its citizens.
Gory incidents such as the Holocaust paved way for the awareness of the
need for a strong Human Rights regime, which in turn resulted in the grant of
recognition of the individual as a subject of International Law.[332] With
the understanding that human rights are only just guaranteed by the state, and
83

not granted by the state, by virtue of the fact that such rights are inherent,
sovereignty and citizenship as a link between the state and the individual
took a backseat, giving the individual prominence at the international level.
[333]
While human rights law has been a major factor in expanding international
law enough to include individuals within its ambit, it is not the only reason.
International law identifies nationality as a link between the state and the
individual. This is a very important factor particularly in the light of
jurisdictional issues, and the international protection of individuals by
states. Every state is vested with the right to determine who its nationals
are, but for the acceptance of such recognition of the identity, there needs to
be a genuine connection between the two.[334]
Despite an explicit recognition of individuals as subjects of International
Law, it must be remembered that an individual is not conferred with locus
standi to protest against a breach of International Law.[335] However, an
individual, or few, may actually be conferred with the power to act on
behalf of the state as an agent or a representative. In the past, individuals
were conferred with particular rights capable of being enforced in
International Law notwithstanding what municipal law stipulated. The 1919
Treaty of Versailles allowed nationals of the Allies and their associated
powers to bring cases against Germany before the Mixed Arbitral Tribunal
in their own names, for compensation.[336] In the Danzig Railway
Officials case,[337] the PCIJ held that treaties in International Law did not
as such create direct rights and obligations for private individuals.
Particular treaties, however, can provide for the adoption of individual
rights and obligations enforceable by the national courts where this was in
particular the intention of the contracting parties. Examples of such cadre
include the European Convention on Human Rights, 1950, the European
Convention Treaties of 1957, the Inter-American Convention on Human
Rights, 1969, the International Convention on Civil and Political Rights,
1966, the International Convention on the Economic, Social and Cultural
Rights, 1969 and the Convention on the Settlement of Disputes, 1965.
International criminal responsibility is another area that has sparked off
much encouragement in the direction of including individuals as subjects of
International Law. International law has imposed direct responsibility upon
individuals in certain spheres of action.[338] Piracy, slavery and torture are
deemed cases where offenders guilty of the crime can be tried and punished
by international tribunals.[339] The earliest instance dates back to 1919,
where the Treaty of Versailles recognized the rights of the Allied and their
84

associated powers to bring individuals accused of crimes against the laws

and customs of war before military tribunals,[340] and also established
individual responsibility of the Kaiser.[341] The Nuremberg Trials
heralded a new era in international criminal responsibility. The tribunal was
known to have held that international law imposed duties and liabilities
upon individuals, too, because crimes are committed by individuals, and not
by abstract entities such as the state, and, only by punishing the individuals
who commit the crimes, can the provisions of International Law be
enforced.[342] With the affirmation of these principles and the Tribunals
decision by the UN General Assembly in Resolution 95(1), these principles
began to be construed as an integral part of International Law. Genocide is
deemed a crime in International Law, and attracts individual responsibility.
[343] This parameter is afforded recognition in the 1948 Genocide
Convention and in the 1973 International Convention on the Suppression and
Punishment of the Crime of Apartheid. The International Humanitarian Law
regime also confirms individual criminal responsibility. The four Geneva
Conventions of 1949 and the Additional Protocols of 1977 in particular,
stress upon the fact that the High Contracting Parties ought to undertake to
enact necessary legislation to provide effective penal sanctions for grave
breaches by an individual.[344]
The International Law Commission has adopted a Draft Code of Crimes
against Peace and Security of Mankind in 1991, which clamps down
individual criminal responsibility for aggression, genocide, a crime against
humanity, a crime against the United Nations, and any war crimes.
Nevertheless, individual criminal responsibility does not hamper state
responsibility.[345] In 1994, the ILC adopted a Draft Statute for the ICC,
[346] which ultimately culminated in the Rome Statute. Special courts have
been established for Yugoslavia, Rwanda and Sierra Leone to deal with
individual criminal cases.
International Organizations
International organizations have played a major role in International Law.
With the end of the First World War, the growth of International
Organizations began with the League of Nations. It is well established in
Law that international organizations possess international legal personality.
[347] However, the question of an organization possessing a status as a
subject of International Law depends largely upon the constitutional
conferment of powers and duties. As evidence of the same, the capacity to
enter into relations with other states and organizations is to be studied in
detail. An international organization once again, boils down to states which
85

in turn boil down to individuals.

International organizations are usually always established by way of a treaty
that acts as a Charter creating the group. They are totally different from
simple groupings or coalitions of states, such as the G8 or the Quartet. Such
groups or associations have not been founded by a constituent document and
exist only as task groups. Such organizations are also fundamentally
different from treaties. Many treaties do not establish an organization and
instead rely purely on the parties for the purposes of their administration,
ultimately succeeding in becoming legally recognized as an ad-hoc
commission. Non-organization creating treaties have essentially established
an administrative apparatus that was not deemed to have been accorded
international legal personality.
Non-State Actors
Non-state actors is a term used to refer to all those entities in International
Law, that are not states, and do not fit into the description of an international
organization, or that of individuals alone. The extra factor that differentiates
an individual from a non-state actor, aside of the fact that the latter is
essentially a group of individuals, is that non-state actors do not always
affiliate themselves to any state, and operate as a faction on a global plane.
Despite the fact that most scholars question the possibility of including nonstate actors as subjects, and the conferment of responsibility upon them,
most scholastic opinion unanimously agrees that such non-state actors
certainly possess rights. At any rate, this at all costs would spark off
debates as to how rights alone may be conferred, while obligations cannot.
It is the fundamental norm of jurisprudence that a right has a necessary
opposite in a duty, and that a right devoid of a duty would inevitably lead to
an untrammeled use of the right.
For any entity to be deemed to be a subject of International Law, certain
requirements need to be met. Mere conferment of rights is not enough. There
needs to be an active entitlement allowing him to claim his rights, or a
passive entitlement allowing him to be tried and held accountable before an
international body.[348] This approach has been criticized on two main
grounds. Rights may very well exist without obligations, and that the
question of who is and who isnt a subject of international law is, in
Professor Rosalyn Higgins words, just an intellectual prison of our own
choosing, then declared to be an unalterable constraint.[349] The question
as to who is, or who isnt a subject of international law, is a political
decision. Law makers determine that a non-state actors deeds impact the
international community to such an extent that it necessitates its actions to be
86

regulated by International Norms, thereby encouraging the law makers to

create the law.[350] Thus, all we need to do is to see the capacity of the
entity in International Law.
Were it true that International law be in favour of affording Non-State
Actors the status of a subject in International Law, it would put an end to
several issues. Terror outfits, one of the forms of Non-State Actors, could
be brought to book without being hampered by state responsibility and the
issue of demanding their extradition. Imposition of human rights obligations
upon a non-state actor alone would put them in a straitjacket of sorts,
demanding their conformity with international responsibility.
Two kinds of non-state actors exist, namely, violent non-state actors, and
other non-state actors. Violent non-state actors refer to any organization that
uses illegal violence, which is any form of force that is not officially
approved of by the state, in order to reach its goals. The term has been used
in several papers published by the United States military.[351] The term
Non State Actors was widely used in the context of development
cooperation, particularly under the Cotonou Agreement between the
European Union (EU) and the African, Caribbean and Pacific countries. In
the Cotonou Agreement, the term refers to a wide range of nongovernmental
development actors whose participation in ACP-EU cooperation is now
formally recognized. Article 6 of the Cotonou Agreement states that nonstate actors include Civil society in all its diversity, according to national
characteristics, Economic and social partners, including trade union
organizations and the private sector.

The Holy See- A sui generis case

The legal status of the Holy See, in the context of both, state practice and
according to the writing of modern legal scholars, is that it is indeed a full
subject of public international law, with all the rights and duties analogous
to those of States. Although the Holy See does not fulfill the longestablished criteria in international law of statehood, its possession of full
legal personality in international law is backed by the fact that it has
diplomatic relations with as many as 177 states, and that it is a member of
various intergovernmental international organizations.[352] This peculiar
nature of the Holy See under international law, as a non-territorial entity
with a legal personality led professor Ian Brownlie to deem it as a sui
generis entity.[353]
However, it is worthy to note that the Holy See itself, while claiming
87

international legal personality, does not claim to be a State. Cardinal JeanLouis Tauran, the former Secretary for Relations with States of the
Secretariat of State of the Holy See, opines that the Holy See is a sovereign
subject of international law but of a predominantly religious nature.
Some scholastic opinion, perceives the current legal personality of the Holy
See to be a remnant of its preeminent role in the course of medieval politics.
It has been noted that the Holy See has been an actor in the evolution of
international law since before the creation of strong nation states, and that it
has maintained international personality since.[354] Divergent scholastic
opinion, however, holds that the international personality of the Holy See
arises solely from its recognition by other states.[355] Another faction
professing a different opinion from the aforementioned, holds that the
international legal personality of the Holy See is based mostly, but not only,
on its unique spiritual role. This seems to be an incomplete understanding,
however, of the grounds on which its claim as a subject of international law
can be justified, since, in this view, the Holy Sees claim to international
personality can also be justified by the fact that it is recognized by other
states as a full subject of international law.[356] The Lateran Treaty seems
to support this point of view. Under Article 2, Italy was known to have
recognized the sovereignty of the Holy See in the international domain as an
attribute inherent in its nature, in accordance with its tradition and with the
requirements of its mission in the world.
National Liberation Movements
International law has long since recognized insurgents in civil wars, as
subjects having certain rights and duties because they control some territory,
and may in all probability, become the effective new governing authority of
the state.[357] Articles 14 and 15 of the ILCs Draft Articles on State
Responsibility support this viewpoint. However, this is largely related to
the issue of self-determination and non-self-governing territories. The UN
general Assembly has allowed the grant of an observers status for National
Liberation Movements.[358]

88

PART II: STATES AS SUBJECTS OF

INTERNATIONAL LAW

Chapter 5- State Recognition

The dynamic nature of International Law owes ample credit to the vagaries
of political systems world over. History is full of instances of new states
being created, as old states fade away into oblivion. Governments change
periodically, automatically infusing world politics into International Law,
and thereby infusing new perspective. Every event on the international frontrebellions, terror attacks, creation of new states- throws up newer theories
and perspectives, each of which have plenty of legal consequences.
Recognition is most concerned with the legal consequences that emerge
from every such event, and every state is vested with the choice of affording
recognition to any newly emerged international entity. With recognition, a
State expresses its approval of the changes that have occurred in the
International polity, and manifests its willingness to maintain intercourse
with the new entity or government involved.
Recognition results, in both, legal and political consequences at the
international and the national levels. A simple example is, that if an entity is
recognized by State A to be a state, rights and duties otherwise irrelevant,
89

will begin to be considered. Municipal courts would accord privileges to

the foreign state, which would otherwise not be allowed to most other
institutions or entities. The choice to recognize or not to recognize hinges
largely upon the political considerations as opposed to legal factors.
Recognition is not confined to the application of legal principles to facts,
because states may not wish to have such consequences follow at any level.
One example for this is the United States choice to not accord North Korea
recognition, primarily to avoid the onslaught of the legal effects flowing
from such recognition.
The extent of dynamism and a continuous state of flux has made recognition
one of the most difficult topics in International Law.[359] It sparks of plenty
of debate, and there is not a scintilla of doubt as regards its impact on the
political and legal scenario. Recognition stands out as one of the major
areas where there cannot be a clear cut divide between law and politics,
thereby making it difficult for one to extricate from the other. Even if a state
chooses on purely political grounds, to refuse, or to accord recognition, its
decision can well be deemed capable of having plenty of legal
consequences. These legal effects, so to speak, have a different set of
consequential results in International Law, as from those in Municipal Law.
Recognition dabbles with a plethora of factual situations, and cannot be
straitjacketed and deemed applicable only in one specific genre of
circumstances. Aside of the recognition of states and governments,
recognition, in principle, may have a role to play in the context of territorial
claims, the recognition of belligerency, insurgents, national liberation
movements, and foreign legislative, administrative or executive acts.
Recognition of a state differs from the recognition of a government, in that
the former results in the acknowledgment of the entity as fulfilling the
criteria of statehood. The latter refers to acknowledging the authority in
effective control of the state at the stipulated point of time. The fundamental
difference segregating one from the other, ultimately, is that there can be
recognition of a state, without recognizing the entity in power at that
particular time, while the opposite is not a possibility, since the recognition
of the government automatically means that the state is recognized.
Recognition of States A definitive perspective
Recognition, generally speaking, refers to a process whereby certain facts
are accepted and endowed with, or are conferred with a certain legal status,
such as statehood or sovereignty over newly acquired territory. It signifies
the willingness, and positive choice by a state in the international
community, in favour of accepting the new state as a member of the same
90

community. In a nutshell, thus, Recognition is simply a procedure whereby

the governments of existing states respond to certain changes in the world
community, and a means by which existing states seek to effect changes in
the same community.[360] The process of recognizing a new entity as a state
is political in nature, allowing room for each country to decide for itself as
to whether it is to extend such acknowledgment, or withhold the same.
International recognition is a rather important piece of evidence indicating
that the factual criteria of statehood actually have been fulfilled.
The Institute of International Law defines recognition of states as the free act
by which one or more states acknowledge the existence on a definite
territory of a human society politically organized, independent of any other
existing State and capable of observing the obligations of International law,
and by which they manifest therefore, their intention to consider it a member
of the International Community.[361] Recognition is one of the means by
which the subjects of International Law may make a situation or transaction
acceptable or opposable to themselves.[362]
Oppenheim defines recognition as being a means through which the
recognizing state declares that a foreign community or authority is in
possession of necessary qualifications of Statehood, of governmental
capacity, or of belligerency.[363] This definition requires that all the
essential qualifications of Statehood, namely, a population, a defined
territory, a government and the capacity to conduct its international relations
independently,[364] needs to be in existence before the entity is to be
fulfilled. However, state practice evidences a deviation from this
precondition. The definite nature of territorial expanse is not a sine qua non
for the purposes of recognition, as was proved in the case of Israel, which
was recognized as soon as it was granted independence in 1948 by the
United States and many other nations. Further, practice also evidences that
the prerequisite for a stable and effective government for Statehood is also
not a mandated precondition.[365] However, it must be remembered, that in
fulfilling all the essential criteria for the achievement of statehood does not
automatically imply that recognition must follow. It is possible that there
may be no recognition despite these criteria being fulfilled, because there is
no duty to recognize, but that there is only just a political discretion of sorts.
States are motivated by their own interests, in determining whether or not it
should recognize the newly emerging state.
The term recognition, when used in the context of recognition of States and
governments in international law, may have several different meanings. It
may indicate a range of things, spawning from the recognizing States
91

willingness to enter into official relations with a new State or government,

or explicitly express its opinion on the legal status of a new entity or
authority, or both. Conceptually, it boils down to a state acknowledging the
status of any entity in International Law, as a subject therein. A state may be
recognized as being fully sovereign, or as an effective authority in a specific
area, or even as any state subordinate to another state.[366] Recognition is
thus an affirmation by one international legal person, of the status of another
entity, as being a legal person, or, of the validity of a specified factual
situation. Recognition causes factual and legal consequences.
Historically, the earliest instance of recognition was in 1648, when Spain
recognized the United Netherlands as a state, which had declared their
independence in 1581. When France and Britain were in dispute as regards
the status of the United States of America, Britain perceived that title to
territory could not be established by way of a revolution or war, if the
former sovereign did not recognize the title. France took a different stance,
accepting that based on the doctrine of effectiveness, title was indeed to be
recognized.[367]
Recognition of governments and national liberation movements is in
definitive terms, governed by the same parameters of political motivation,
and interests of the states concerned. A classic example of this is the PLO.
The Palestine Liberation Organization was given the status of an observer
by the United Nations General Assembly, in 1974.[368] It went on to
declare the establishment of the independent state of Palestine in 1988 by its
Parliament-in-exile, or the Palestinian National Council.[369] The
erstwhile Government in exile was in Tunisia, and was accorded
recognition by several states, including India among others.[370] Today,
newly formed states such as Kosovo, Abkhazia and South Ossetia are still
awaiting recognition from a large majority of states in the International
anarchy. The case of Kosovo is particularly interesting, in that three of the
major powers housed as permanent members of the Security Council, i.e.,
the USA, UK and France have recognized Kosovo, while Russia and China
have not. This seems a case of double standards on part of the former, as
none of the states as much as afford an iota of recognition to South Ossetia
or Abkhazia. This is clearly indicative of political interests being the
factors backing the choice of the state to recognize, or to not recognize. The
legal consequences emanating therein, are that Abkhazia or South Ossetia,
or Kosovo, for that matter, will not enjoy rights under the municipal legal
regimes of the states not recognizing them. It must be remembered that
though some states that are unrecognized by the world community may be
members of the United Nations, it does not automatically evince recognition,
92

although it is a clear-cut case being made out in favour of announcing that

the concerned entity is indeed a state.
Albeit highly politically motivated, and self-interest inspired, recognition
finds a place in International Law on account of the legal consequences that
emanate from it. The recognized entity enjoys certain rights and duties under
International Law, and also under the municipal laws of the states that have
recognized it. Once recognized, the state granting such recognition is not
allowed to contest the qualifications for recognition.[371]
Theories of Recognition
Albeit a very practical aspect of International Law, two theories
fundamentally govern the process of recognition, thereby creating models
of recognition. The core contentions of these theories are indicative of what
goes into the recognition process, and what emanates from the accordance
of recognition. The theories study the manner in which recognition itself is
perceived by the states in question, which in turn, indicate how the state, or
the entity concerned is perceived. The two basic theories are the
Constitutive, and Declaratory Theory.
The Constitutive Theory
The Constitutive theory puts the process of recognition on a rather high
pedestal. The crux of the theory is that recognition is the fact that constitutes
the state, or brings the state into existence. The theory purports that until
such time that recognition is accorded, the entity is not a state at all. A state
is, and becomes, according to this theory, an international person through
recognition only and exclusively.[372] The state, in effect, evidently
deduces its legal existence from the will of those that have already been
established.[373]
The theory originated with Jellinek, who was essentially the first to give
modern formulation to the constitutive doctrine of state recognition,
contending that legal relations in the form of legal rights and duties between
two entities not subject to a superior legal order can arise only as the result
of mutual recognition of legal personality.[374] Though essentially stating
that every state actually part of organized humanity enters ipso facto into the
general community of States, Jellinek urged that recognition is a necessary
factor in order to make it a part of the juridical community of States, thus
seeking to distinguish between statehood and membership in the
international community, which is the fount of rights dependant on
recognition. Scholastic opinion, subsequently, in favour of this school of
thought included those of Triepel and Anzilotti.[375] Anziloti primarily held
that rules of international law emerge from the consent of States, and
93

naturally, a subject of International law should come into being

simultaneously with the conclusion of the grant of recognition.
Despite rather supportive scholastic viewpoints, the theory has a catena of
downsides to it. When a new state appears on the scene, possessive of all
the requisite attributes that deem it a state, and it is not recognized, the state
would essentially be a cat on the fence, being both, an international person,
and not an international person, all at once.[376] Recognition cannot, for all
practical reasons, be afforded by all the states at one time together. States
take time in deciding whether or not to afford recognition, in the process
taking longer, or less longer in comparison with other states. With all these
practical potholes in place, there is no wrong in admitting that recognition is
in no way any form of conclusive proof of the existence of the state itself.
This is buttressed ably by state practice, which indicates clearly that nonrecognition does not automatically mean that the entity does not exist, given
that legal history is full of instances where judicial remedies have been
sought against unrecognized states or governments under International Law.
In the Pueblo case,[377] the case was between the United States and North
Korea, although the United States did not recognize North Korea. The
United States ship was captured by North Korea for spying in North Korean
territorial waters. It was released later without trial, when the United States
a document, indicating that the Pueblo, their vessel, was indeed spying.
Similarly, the Tinoco Arbitration case,[378] was an arbitration between
the United Kingdom and Costa Rica, the latter not being recognized by the
former. The Tinoco government took over the country by force in 1917,
while at the same time proclaiming its own constitution. The government,
which remained in power until 1919 was subsequently ousted, paving way
for the new government which passed a decree that repudiated some of
Tinocos obligations towards British Nationals, among other obligations.
The Tinoco government was not recognized by the United Kingdom, thereby
leading to the UK bringing in a claim on behalf of its nationals against Costa
Rica. The Costa Rican contention was that the UK did not recognize Tinoco,
and hence, the claim could not be sustained. The arbitrator, however, ruled
that the UK could very well bring in a claim even though it did not recognize
Costa Rica. In 1949, when British airplanes were shot over Egypt, by
Israeli airmen, the British government demanded compensation from Israel
though it had not recognized Israel.[379]
Were it true that the constitutive theory be the rulebook that ought to be
followed, there would be too many fallacious consequences to deal with. If
an entity is not a state until it is recognized as one, as a natural corollary, it
would imply that such entity has no rights or duties under International Law,
94

and under the concerned municipal law. While in each of the above cases
there was no recognition, it is clear that the entities were all under
obligations to the states suing them in the International sphere of action.
Secondly, states are free to decide if they wish to accord recognition, or
withhold the same. This is entirely a political decision of sorts, one that
cannot be put in a straitjacket of mandate. When a state decides to grant
recognition, it is merely a case of recognition following the cognition of the
very factual existence of the entity.[380] Thirdly, recognition works
retrospectively, in that the state once recognized, all acts and laws of the
state are given effect to from the time the state in question fulfilled the very
quintessence of the criteria for the attainment of statehood. Retroactivity
flows from the underlying philosophy of State sovereignty, in that there
should be continuity in the states functioning, which would otherwise lead
to nullifying transactions entered into by the unrecognized entity with private
citizens of a State. The theory, however, is a rather severe demonstration of
sovereignty, in that unless a sovereign state recognizes an entity as a state,
such entity is not a state. This puts a spoke in the wheel of the constitutive
theory, since the core contention of the theory rests on the foundation-stone
of the norm of non-existence of a state prior to recognition.
However, the Constitutive theory is not entirely dismissed. In some
circumstances, the emergence of a new state, or the establishment of a new
government by deploying means that are unconstitutional or even the
occupation of a territory legally claimed will be sufficient to establish a
state without opposition. Such evolution may leave the new state insecure,
and thus, recognition would be of immense value, in bringing the state into
accepted existence.
The Declaratory Theory
The declaratory theory, popularly known as the evidentiary theory contends
that recognition is merely perfunctory, because a state exists even if there is
no recognition accorded to it. Recognition is merely a declaratory piece of
evidence, indicating that the state has indeed fulfilled all the essential
requirements of statehood. The theory purports that an entity does not derive
statehood from the consent of other states, but from its own set of factual
circumstances. The state is what it is for the simple reason that it acquires
independence by way of its own efforts, and does not need to await
recognition in order for it to attain statehood.[381]
The declaratory theory enjoys greater favour as opposed to the constitutive
theory, given that it is highly accommodative of the political nature of
recognition. The theory does not depict a situation of incapacitation on part
95

of the state if there was no recognition. State practice and judicial opinions
depict that even non-recognized entities are bound by their international
obligations.
Over the past century, practice has evidenced that the declaratory approach
has been preferred over the constitutive approach. States that have refused
to recognize other states,[382] rarely contend that the other party is devoid
of powers and obligations before International Law and exists inside a legal
vacuum. This indicates that recognition is not given for purely political
reasons, and that such refusal does not mean that the state in question is not
bound by rights and duties in International Law. When a state fulfills all the
requisite elements for the attainment of statehood, it hampers the exercise of
rights and duties, particularly in that there will be no diplomatic relations
between the states in question. The Charter of the Organization of American
States adopted at Bogota in 1948, enunciates clearly under Article 9 that the
political independence of states is independent of its recognition by other
states. A state is free to defend its integrity and independence, even before
formal recognition is afforded. The 1936 Resolution adopted by the Institut
de Droit International emphasized that the existence of the new state with all
the legal effects connected with that existence, is not affected by the refusal
of one or more states to recognize.[383] The states that emerged with the
end of the First World War regarded their emergence as states upon their
declaration of independence, and not as a consequence of peace treaties.
[384] The existence or disappearance of a state is a question of fact, and the
effects of recognition by other states are purely declaratory.[385]
The declaratory theory, although pragmatic in its own way by identifying
recognition as decidedly perfunctory, is flawed in one respect. An entity
though in existence, when not recognized by say, a state, or a few states, or
even many states, would find itself in a situation where despite being a state
for all practical reasons, it fails to enjoy the rights and duties under the nonrecognizers municipal laws; and, would also find itself in a situation where
its status under international law, with respect to the other state(s) not
recognizing it, would be one lacking legal personality. To this extent, thus,
recognition seems constitutive.
Recognition is essentially undertaken on the middle-path, in practice,
combining both declaratory and constitutive elements. It is declaratory in
that the process of recognition is based upon certain definitive facts and the
fulfillment of the essential prerequisites of statehood. It is constitutive in
that the acceptance by the recognizing state of the particular community as
an entity possessing all the rights and obligations already inherent in
96

statehood.
Recognition- Obligatory v. Discretionary
When a state fulfills all the requisite criteria for statehood, and awaits
recognition from the other states in the international anarchy, there arises a
question as to whether there is a duty to recognize, or if it is a discretionary
issue left to each state to sort out. Lauterpacht opines that once the
conditions of statehood have been complied with, all other states have a
duty to grant recognition. The absence of a central authority in the
International Legal Regime is a handicap in the process of assessing and
according legal personality. this automatically implies that the duty thus falls
upon the states.[386] However, pragmatic as this line of thinking seems to
be, State practice does not support the view point. The United States,
especially, in 1976, declared that in its point of view, International Law did
not mandate that a state ought to recognize another state, and that it was a
question for the judgment of each state to answer.[387] In one sense, this
may seem unfair, but in keeping with the primary tenets of International Law,
it seems clear that a state as a sovereign, is free to determine its own
internal and external affairs, and its standpoint on international affairs and
related issues. This is essentially depictive of the fact that States,
fundamentally, have their own sovereign rights, and this extends to their
choice of granting, or withholding recognition. Granting or withholding
recognition ultimately remains to be an issue of policy, rather than one of
obligation under the law.
Looking at recognition as a duty also depicts another glaring lacuna in the
theory. If states in the international comity are obligated to recognize a
newly formed state, this would, in effect, create a right in the hands of the
newly formed state, to be recognized, and in event of denial, to demand that
it be recognized. However, there is no prudence in considering that the right
could exist, because that would go against the political independence of the
other states that may choose not to recognize the newly created entity for
want of better things for their interests.
Though states may, in essence, refute a grant of recognition, once a new
entity fulfills the requisite criteria for statehood, it cannot quite be ignored
by the International community. In many a situation, states have remained on
their own high-ground of non-recognition as far as a new entity is
concerned, but with time, recognition is eventually granted. This is a facet
attributed to the dynamic nature of the legal realm, and the ever changing
sphere of political action. Globalization has made the world a progressively
smaller place, and interfaces open up a plethora of avenues for states as
97

entities to interact in the playground of the international anarchical realm.

Manner of Recognition
Recognition is a dynamic process, involving a mix of knowledge of
necessary facts and an intention to recognize the entity as a state itself.
International law does not clamp down a duty to recognize, and does not lay
down a mode of action to be followed in order to depict recognition. State
practice has showed that recognition may be granted explicitly or implicitly,
the latter being a matter of inference and presumptuous understanding. In any
case, where the state has recognized the other entity, it immediately implies
a case of accordance of acceptance of the entitys status as a legal person.
Explicit Recognition
Explicit recognition, as evident from the name, is a form whereby the state
declares, or announces its recognition of another entity as a state. This may
come to be either in the form of a public statement, or a notification, or a
diplomatic note, or even a personal message sent to the new entity, or in the
form of concluding a bilateral treaty or agreement. The Indian governments
recognition of Bangladesh was by way of a formal declaration.[388] The
United Kingdom followed this mechanism in its recognition of its erstwhile
colonial and dependent territories. This was evident in the context of its
many treaties with its colonies at the time of their independence.[389]
Explicit recognition is easy to cull out, and to use in order to understand the
position of each state in the International realm. Explicit recognition also
works in favour of the state emerged newly, in that it is capable of
accurately determining where its rights and duties can be enforced, and
sought to be enforced in the International Sphere of action.
Implicit Recognition
Recognition need not be expressly depicted all the time. Recognition can
easily be inferred from the conduct of the parties in question. However, in
order to draw a conclusion in favour of recognition, it is necessary that the
act must be of such nature that it is indicative of the fact that recognition was
indeed intended, and that it was an inescapable consequence. As long as the
intention is in favour of according recognition, nothing can preclude an
inference in favour of a position that evinces the accordance of recognition.
[390]
As far as implicit recognition is concerned, bilateral and multilateral acts
are most efficient in aiding a favourable inference. Where a state signs a
bilateral treaty with a new entity, it implies recognition. Of course, only
signature or ratification is insufficient.[391] Allied therewith, is the
establishment and forging of diplomatic relations between the recognizing
98

and the recognized, the receipt of consuls of the new state, and sending
individuals in capacity of representatives for the purpose of ceremonial
functions in the new state. Similarly, multilateral acts evince a similar
conclusion. A state is free to express its intention to recognize a new entity,
by way of common participation in a multilateral treaty, or an international
conference, along with the unrecognized entity.[392] Albeit implicit in some
cases, the extent of importance one may attach to the conclusion as derived
from a multilateral act is rather questionable, because ultimately,
recognition is a unilateral and discretionary act. The United States and the
United Kingdom have been rather cautious in adopting this line of thinking.
[393]
Kinds of Recognition- Common Types and Prototypes
Recognition, as is the case with most other forms of protocol based practice
in International Law, produces varied patterns of action. As already
enunciated, there is no set of norms to abide by in the course of practice.
This has only lead to a wide venation of types and prototypes on the leaves
of International Law. Some of the most common ones are explained herein.
De Facto and De Jure Recognition
Recognition may be of two forms, de facto and de jure. The distinction is
rather important to the countries modeled on the Anglo-American system.
With the exception of the cases involving newly emergent states, the
distinction between de jure and de facto recognition is relevant in
pertinence to governments.
De Facto recognition indicates the existence of some doubt as to the longterm viability of the government in question. Where the recognizing state
opines that the new state or governmental authority lacks the stability and
permanency it needs to remain on the International Scene permanently, it
generally tends to afford de facto recognition. De facto governments are
more of an unsure position, where the recognizing state adopts a cautious
approach, seeking to wait and watch before committing to a permanent
recognition of sorts. De jure recognition, on the contrary, indicates that the
state granting recognition accepts that the effective control as vested in the
hands of the new government is permanent and that there is no legal reason
detracting from this. If the recognizing authority is sure of the stability and
permanence, and is sure of the other requisite criteria being fulfilled, it
accords de jure recognition. However, at the very base, both forms are
founded on the perception that there needs to be effective control over a
given area with a certain sense of permanence and stability. Usual practice
evidences a general tendency to afford de facto recognition before de jure
99

recognition, a trend most common in cases where the bona fides of the
governments acquisition of power are questionable and do not quite meet
the threshold of constitutionality.
Drawing distinctions between the two, it is clear that a de jure government
is one that ought to possess the powers of sovereignty but may be deprived
of them at a given time, and a de facto government is essentially one in
possession of all the powers of sovereignty, but having come upon them in a
manner that is questionable.[394] Once granted, on no account can a de jure
recognition be withdrawn, except where the state itself ceases to exist, or
there is a change in the governmental entity. However, a de facto
recognition is reversible, in that a state accords it with the apprehension as
to the states continued stability and longevity, and should there be any
reason striking at the very base of either, the recognition so accorded may
freely be withdrawn. A de facto recognition is not always tentative, or one
that hangs on tenterhooks by depending on the vagaries of the recognizing
states chosen point of view. Where a state turns a de facto recognition into
a de jure one, there is no room for tentativeness. A case in point is the UKs
original decision to accord de facto recognition to the Soviet Union in
1921, and three years later, its subsequent decision to change it to de jure
recognition.[395] The Italian conquest of Abyssinia was accorded de facto
recognition by Britain in 1936, and later became a case of de jure
recognition two years later.
During civil wars, the distinction between de facto and de jure recognition
is employed in order to illustrate the difference between legal and factual
sovereignty. The distinction is also rather more clearly pronounced in the
municipal law of the recognizing state, as opposed to the international legal
realm. However, instances reveal conflicts between a de facto recognized
regime, and the displaced erstwhile de jure regime on the same territory.
Practice reveals that in such cases, the rights and duties of the de facto
government would prevail over the de jure one.[396] The basic differences
between both forms of recognition at all times are rather obvious. De facto
recognition is temporary and conditional, but de jure recognition is
permanent. Only de jure entities can be accorded diplomatic relations, and
can claim to receive property in the recognizing state.
Premature Recognition
The acceptable recognition of a state differs entirely from the intervention in
the domestic affairs of the state by way of premature recognition. What
underlies both is perspective as regards the facts peculiar to the concerned
event. An example of premature recognition is the case of Croatia.
100

Recognition afforded to Croatia by the European Community on 15 January,

1992 was premature. The Yugoslav Arbitration Commission, in Opinion
No.5 on 11 January 1992, that Croatia had not fulfilled the preconditions
for recognition, particularly because the Croatian constitutional act had not
fully incorporated the requisite guarantees in pertinence to human rights and
minority rights.[397]
Another example is the recognition of Bosnia and Herzegovina by the
United States, on 7 April, 1992, and the European Community on 6 April,
1992. The government of Bosnia and Herzegovina held effective control
over less than one half of its territorial expanse, and this continued until the
Dayton Peace Agreement of 1995.[398] Recognition, as such, is also
capable of being overdue, in that it has not been granted despite being
considerably long after the criteria of statehood have been fulfilled.
Collective Recognition
Collective recognition arises when several states recognize a newly formed
entity together, in the form of a collective act. Collective recognition is
neither prohibited nor prescribed as the norm under International Law. As a
matter of policy, states are free to decide whether or not they wish to
recognize states, and in the course of according recognition, they are free to
determine whether they wish to do it in conjunction with other states,
collectively. This facet has been the major factor in diluting the extent of
collective recognition in practice, although it is not ruled out in entirety. It
would be advantageous over a unilateral act of one state, and insistently
assure the acceptance of the newly emergent state. The Berlin Congress of
1878 accorded recognition to Bulgaria, Serbia, Romania and Montenegro,
and Estonia and Albania were recognized by the Allies in 1921.[399] As to
what these collective acts of recognition are, however, are left to the
recognizing states themselves to determine. Oftentimes, instances have
posed questions in need of an answer, particularly in relation to cases
where the new entity acquires membership in the United Nations. This was
answered in the United Nations case,[400] by the ICJ which said that the
admission of a new entity into the United Nations was merely an
acknowledgment by the organization, that the member is a State. Admission
to the membership is not necessary collective recognition. A vote in favour
of a states membership does not imply recognition or readiness to assume
diplomatic relations.[401]
Recognition has a two-pronged role to play in International Law. Where the
recognizing state is concerned, recognition offers acceptance that the new
entity is deemed a state in the International community. Admission as a
th

th

th

th

101

member to the United Nations essentially fulfills the function of accepting

the entity as a state. For the international community, recognition is deemed
evidence of Statehood of the newly formed entity. Thus, the admission of an
entity into an organization does not automatically imply that each individual
state has accorded the entity with statehood.
Conditional Recognition
Conditional recognition refers to that form of recognition whereby the newly
created entity is accorded recognition, depending upon the fulfillment of
certain conditions in further addition to the normal requirements.
Conditional recognition was a rather integral part of international practice
in the nineteenth century, but has dwindled since.[402] Conditional
recognition, however, has no standpoint in the eyes of legal theory, given
that non-fulfillment of the condition and subsequent disobedience of the
conditional requirement does not warrant the withdrawal of recognition.
[403]
The non-acceptance of conditional recognition also rests on the fundamental
surmise that if the recognizing state is free to recognize, or refuse to
recognize at its own whim and fancy, it does not bode well for the newly
emerging entity to be clamped down with the heavy obligations of
additional conditions imposed by the recognizing state. Of course, these
conditions bear political overtones, more than legal character. It is because
of this facet that even disobedience of the conditional demands does not
warrant the withdrawal of recognition, or the termination of recognition.
The recognizing state, however, is not left without a remedy. It is free to take
political action by breaking up diplomatic relations, or even take to the
imposition of sanctions. This may lead to a situation of hostility and a
general feeling of distrust, as a primary result of which the process of
Conditional Recognition has been done away with.
Legal consequences of Recognition
Recognition is an essentially political function, with consequences bearing
both, legal and political overtones. Politically, a state opens up its avenues
for relations with a newly accepted entity, which in turn is likely to have
tangible impacts on its policies and economic structure, where applicable.
The legal side of the consequences flows from the series of rights,
privileges and duties that are conferred upon the newly recognized state by
the recognizing state. The newly recognized state is entitled to conclude
treaties, establish diplomatic relations and create corresponding obligations
for the other nations under International Law. The new entity is conferred
recognition as a sovereign, and is granted the entire array of rights it is
102

entitled to, in capacity as being a sovereign authority. The general practice

of most States in International Law allows the newly recognized entity to
sue in the courts of the recognizing state, to claim immunity from legal
action for all its diplomatic representatives and properties in the
recognizing state, and to demand and receive possession of all public
property that belong to it. Granting recognition is essentially an act of the
executive, which thus requires the courts in the recognizing state to seek the
opinions of the executive, and to have a look at all letters and certificates
received from the foreign office, all of which bear conclusive force.[404]
This was the line of thought as applied in Duff Development Co. v.
Kelantan Government,[405] where the court followed the Foreign Offices
statement in recognizing Kelantan as an independent state. Where there lies
any form of ambiguity in the foreign offices statements, the court is
permitted to make its own independent assessment of issues at hand, and the
factual circumstances shrouding them. The court, however, is fully permitted
to study the attributes of statehood as possessed by the entity,
notwithstanding the conclusion of the Foreign Office, in all circumstances
aside of jurisdictional immunity.[406]
When states recognize a claim to statehood, which directly implicates issues
of sovereignty, the legal position essentially depends partly on a distinction
between matters which are obligatory in international law, and those which
are left to the states good judgment. The states recognition of a new entity
will open up avenues for the state in congruence with the new entity, but, as
far as norms such as jus cogens, or erga omnes obligations go, nonrecognition does not preclude the right to sue, or to take action against the
non-recognized entity. This is not a hard and fast rule, in that state practice
is peppered with cases where states have taken non-recognized- in relative
context- entities to task, and sought compensation and other relevant
remedies.[407]
Another aspect that needs to be understood is that recognition functions
retroactively. If recognition is rendered operative with effect from the date
on which recognition is accorded, it would render all legislative,
administrative and executive acts of the state prior to such date as null and
ineffective, which would hardly bode well for the legal and political
standing of the state in question. Retroactivity, thus, functions as the stopcork in the process, and secures the position of the state in the international
realm, by dating the recognition back in time, thereby accepting the
legitimacy and legal standing of all the legal, administrative and executive
acts. Retroactivity in recognition validates all the decrees and acts of the
erstwhile unrecognized entity.[408]
103

Withdrawal of Recognition
Once granted, recognition cannot generally be withdrawn if it is a case of de
jure recognition. This works in the same manner even if the recognition was
essentially conditional in the first place. The Montevideo Convention, under
Article 6 emphasizes this line of thinking, holding that de jure recognition is
fundamentally unconditional and irrevocable. Nevertheless, one cannot
forget that in practice, de jure recognition is withdrawn when one state
merges into another state, either as a result of annexation, or through
conquest. This purports a case where the recognition of the original entity
ceases as the entitys existence itself draws to a close. Of course, the state
may not necessarily do this, because it may continue recognition even if the
entity has lost all the attributes of statehood. The 1940 policy choice of the
US and the UK, in not accepting the Soviet annexation of Latvia, Lithuania
and Estonia, and in accepting the diplomatic representatives of these states
in capacity of accredited representatives of a de jure government is proof of
this.
As regards de facto recognition, it is essentially provisional. The
underlying reason for affording de facto recognition is that there still are
doubts as to the credibility of the states stability and continuance into the
future. The entire backdrop, upon which de facto recognition is centered, is
one which perceives the factual context before such recognition is extended.
This implies that once the factual circumstances change, the recognition may
well be withdrawn.
As far as the recognition of a government is concerned, once recognition is
extended to a new government, recognition as regards the former
government has effectively been withdrawn. Historic accounts show the UK
withdrawing recognition of Ethiopia, Abyssinia as it was then known as,
also withdrawing the recognition of the erstwhile Haile Salessies
government in the process, while it granted de jure recognition to Italys
annexation of Abyssinia.
Non-Recognition and Consequences that Follow
When an entity is not recognized as a state in International Law, it faces
disabilities and a stultified sense of existence in pertinence to the specified
states that have not extended recognition. The unrecognized state will not be
allowed to sue in the municipal courts of the state that has not recognized it,
and all of its administrative and legislative acts will not be given
recognition either. There will be no immunity afforded to its
representatives, and the unrecognized state will not be allowed to recover
104

public property it is due to otherwise receive.[409] However, nonrecognition does not affect issues aside of jurisdictional immunity.
Marriages duly performed, transfers properly registered and adoptions
undertaken, will not be invalidated on account of non-recognition.[410] The
unrecognized state has no locus standi whatsoever in the courts of the nonrecognizing state.
Allied with the notion of non-recognition, is the Stimson Doctrine of nonrecognition. Formulated by the erstwhile United States Secretary of State in
1932, the doctrine emerged with the Japanese invasion and conquest of
Manchuria, which was under the sovereignty of China. The doctrine
purports the withholding of recognition from new territorial titles or
territorial changes brought out by the use of force or any other act of
doubtful or unlawful character. The doctrine works as a protest against any
form of illegality in the international realm, and is steeped in the idealistic
adage of according respect for jus cogens obligations. It aims to send out
the message that a wrong cannot be righted, and that a title acquired by
means that do not fulfill the lawfulness requirement cannot be set right by
affording recognition. The doctrine takes one step further in establishing that
states have to declare non-recognition, so as not to even allow room for
acquiescence and prescription to play a part in the state securing its
territory. It later found place in the League of Nations, under Article 10. The
UN Charter does not have a similar provision, but prohibits the use of force
in the course of international relations under Article 2(4). All forms of
intervention, and attacks on territorial integrity are prohibited under Article
2(4). Nevertheless, the issue of obligatory non-recognition came up as an
issue in the context of South-West Africa, more commonly known as
Namibia. The UN General Assembly terminated the South African mandate
over Namibia in 1966, while bringing Namibia under the direct control of
the UN. The Security Council through a resolution, declared the continued
presence of South African authorities in Namibia illegal, and declared all
acts taken by the Government of South Africa on behalf of Namibia, after the
termination of the mandate as being illegal.[411] The ICJ, in its advisory
opinion in the Legal Consequences for States of the Continued Presence
of South Africa in South-West Africa (Namibia) case,[412] held that all
of the member nations of the UN were bound by the obligation of not using
force or the threat of force in the course of International Relations. The court
held that member nations were obliged not to recognize the legality of the
South-African presence in Namibia, and were to abstain from sending in
representative diplomats and special missions to South Africa- Namibia
included. Economic dealings and relationships were also ordered against.
105

With the end of Namibias case, there hasnt since been another such
instance in International State Practice, though the matter serves its purpose
by holding high academic value.
Recognition of Governments
A state is an abstract entity, and functions only through its people. It is a
ridiculous prospect to assume that all the individuals in the state shall take
decisions on behalf of the state, for practical reasons such as room for
imprudence, and the likelihood of logistical difficulties arising. Therefore,
these people appoint representative entities in the form of the government,
which in turn functions as a liaison between the people of a state, and the
international world. Recognition of a government is governed by similar
protocols and politico-legal considerations as state recognition. However,
recognition afforded to a government is independent of recognition of the
state, except where the situation involves a nascent state that is being
recognized along with the governing entity. When the government is not
recognized, it does not mean that the state loses recognition. Similarly, when
the state itself is recognized, a change in government does not jeopardize its
standing in International Law, since there is only just a change in the
political administrative trend in the state, which is essentially internal.[413]
The recognition of a state does not immediately and automatically mandate
that the recognizing state has to recognize the new regime in charge of the
state itself.
When the new regime takes over by way of means that seem
unconstitutional, unlawful or generally don the garb of being questionable,
the issue of recognition of governments seems a rather important issue that
needs to be addressed. This does not arise when the change in government
bears lawful and constitutional overtones, since it fulfills protocol and
lawfulness. Recognition of such an entity automatically follows when there
is an expression of congratulations, or any other perfunctory depiction.
Where the change is unconstitutional or unlawful, the prime criterion taken
into consideration before extending recognition is the stability that the
government is capable of, along with the extent of sway over the populace,
and the extent of effectiveness it possesses. If these aspects are not weighed
with due prudence, it would amount to being a premature act, one that is
illegal in terms of being tantamount to intervention in the internal matters of
the state, thereby breaching International Law. The state is free to grant de
facto recognition to the governing authority until such time that it satisfies
itself as to the veracity of the government, and the stability it shall wield in
the years to come.
106

Recognition of governments has not generally been approved of by the

scholastic world. As pointed out by Judge Richard Baxter of the ICJ, it
seems more problematic than of any help, and any form of partial
withdrawal would help in having smooth relations with States where
revolutionary governments take over.[414] The Estrada doctrine also
indicates the loss of favour in relation to this, where in the 1930s, the
erstwhile Mexican foreign minister held that it was the duty of a State to
continue diplomatic relations with States without regard to the revolutionary
changes on its soil. Present-day practice of the United Kingdom and the
United States depict a tendency to rely upon this doctrine in issues
pertaining to the recognition of governments. Originally, in the United
Kingdom, importance was laid on the effective control test, which was a
mechanism where the extent of effective control of the governmental
authority was studied as a precondition to the grant of recognition.[415] As
far as the United States is concerned, this doctrine is rather important. In
1978, when it came to a question of recognizing the Taraki Government in
Afghanistan, the United States pointed out that the question was not one
pertaining to whether recognition is to be given, but one as to whether the
diplomatic relations should continue.[416] Australia also followed suit in
1988, indicating that their policy leaned more towards determining whether
there needs to be a continuation of diplomatic relations, or the establishment
of the same, wherever applicable. India seems to show allegiance to the
Estrada doctrine in practice, as was evident by its maintenance of
diplomatic ties with the Najibullah regime in Afghanistan despite not having
formally recognized it. Recognition of governments may seem to be deemphasized in the present milieu, but there does not seem a possibility of
completely doing away with the theory, since recognition hinges largely
upon political considerations. This in turn, gives room for states to snap
diplomatic ties with another state as a retorsion, and restore it to normalcy
later.[417]
Having laid out the theoretical and practical considerations, it is necessary
to study the modalities that need to be followed in order to effect
recognition of governments. It may be done by way of sending a formal note
of acknowledgment, or a public announcement, agreement,[418] or even
receiving the credentials of the envoys and representatives of the new
government.
Recognition of Belligerency and Insurgency
The recognition of belligerency and insurgency has for a fairly long time,
held only theoretical value more than anything else. Afghanistan, erstwhile
107

Yugoslavia and Sri Lanka brought the subject onto the practical realm, long
after the earliest instance, the Spanish Civil War between 1936 and 1939.
Insurgency and belligerency are essentially forms of insurrection, which
mean acts of uprising with arms in tow or any form of rebellion against
established civil authorities or established governments. Being primarily
internal in nature, belligerency and insurgency are not usually interfered
with by other states unless there are vested interests that need protection.
Where the interests need to be protected, and there needs to be intervention
by an outside state, certain preconditions need to be fulfilled for the
recognition of both, insurgency and belligerency. Where insurgency is
concerned, these are the prerequisites:
1. The insurgents should be in effective occupation of a fairly substantial
portion of territory
2. They should enjoy support of a majority of the populace inhabiting the
territory
3. The insurgents should have the will and ability to carry out
international obligations.
Belligerency refers to a case where there is an armed rebellion, which
reaches enough proportions to stir up a war between the existent government
and the rebellious groups. To recognize belligerency, the following criteria
need to be fulfilled:
1. The hostilities must be widespread, and of a general character
2. The insurgents should be in effective occupation of a fairly substantial
portion of territory
3. The forces of the insurgents should be properly commanded and
observe all the laws of warfare
4. The hostilities must reach such magnitude and proportion that outside
states may find themselves compelled to conclude the existence of
belligerency
5. Recognition of belligerency should be followed by a Declaration of
Neutrality.[419]
Of course, it is not to be forgotten that the recognition of belligerency and
insurgency are equally backed by political considerations. Extending
recognition will confer protection of the commercial interests, trade
interests and other interests against any form of attacks and harm by warring
entities, for the recognizing states. Once recognition is granted, the
108

relationship between the state affording such recognition and the belligerent
or the insurgent, will be governed by the rules of International Law.
Political considerations being at the helm of affairs at all times, has led to
the choice of states to refrain from recognizing belligerency and insurgency.
States such as the UK and France believe they are bound by an obligation of
Non-Intervention, and hence refuse recognition of belligerency and
insurgency.

Chapter 6- State Responsibility

Having established that a state is a subject of international law, it is clear
that there are rights and duties owed to and by it as regards the international
community as a whole. The status of a state as a subject entails that it is an
entity that is governed by and subject to international law. As a
consequence, a state is granted certain rights under law, and is expected to
conform to certain obligations under the law. This rule takes root in the
rudiments of jurisprudence, which succinctly elaborates upon the fact that
every right has a duty as a corollary. When a state either breaches its duty,
or poses a hindrance to the rightful enjoyment of another states rights, a
state must necessarily face the consequences. This is entirely governed by
the rules of state responsibility. The law of state responsibility deals with
the determination as to whether there is a wrongful act in the first place, and
then the legal consequences of the wrongful acts, and how the state may be
held responsible for the wrongful act as carried out by it.
When an international obligation is breached, or when one state commits an
internationally wrongful act against another state, the two states find
themselves inextricably linked by the rules of state responsibility. A breach
of an international obligation gives rise to a requirement for reparation in
any form.[420] When the rights of another subject of international law are
breached, by way of an unlawful act or omission, it happens to be a
violation of substantive law, which in turn, gives rise to consequences that
are governed by procedural law.[421]
The active interaction between international law and the rules of state
responsibility has resulted in the emergence of several instances of judicial
precedents and plenty of scholastic debates. A major segment of this field is
a result of state practice, which has in turn evolved into a form of customary
international law. However, the international law commission has been
working extensively in this field, having divided the entire sphere of law
109

into three parts, whereby Part I deals with the origin of International
Responsibility, part II deals with the form, content and degrees of
International Responsibility, and part III deals with the settlement of
disputes and the implementation of International Responsibility.[422] Part I
was provisionally adopted on 9 August, 2001,[423] and with the UN
General Assembly Resolution 56/83, dated 12 December 2001, the
Articles were commended to the governments.
The law on the subject is essentially largely customary international law.
Judicial opinion evidences a greater part of the customary norms.[424]
Given that the state cannot by itself commit acts of commission or omission,
responsibility arises for the acts of the states individuals and agents, and
corporations.
Responsibility: Meaning and Nature
Oftentimes, it is said that the sovereign does not have any obligations under
the law. This stands true for a state in pertinence to its own subjects, as it
has the discretion to change a law if it so requires. Of course, newer trends
depict that the state can indeed be held responsible for draconian policies,
and any of their actions that flagrantly disregard its subjects rights.
However, when one sovereign interacts with the other, there is no room for
the rule of no responsibility. The rules of international law as to state
responsibility concern the circumstances in which, and the principles
whereby the injured state becomes entitled to redress for the damage
suffered.[425] It is both a principle in international law and in municipal
law, that any breach of an engagement involves the obligation to make
reparation.[426] In the Spanish Zone of Morocco case,[427] Justice Huber
noted that responsibility is a necessary corollary of a right. All rights of an
international character involve international responsibility, and
responsibility results in the duty to make a reparation if the obligation in
question is not met.
At times, the term responsibility is used interchangeably with the term
liability, but the use of either term in a straitjacket has not been known.
Liability is commonly understood to be the second part of responsibility, in
that it is the part where the payment, or compensatory reparation needs to be
made. Responsibility, however, refers to the determination of who or what
the force behind the act or omission itself is, and thereafter the demand for
reparation from such identified force.
The quintessence of state responsibility hinges on the fulfillment of three
basic essentials. Primarily, there needs to be in international obligation
between the two states, in force at the material time. Secondly, an act or an
th

th

110

omission which is imputable to the state responsible should have occurred.

Finally, there must be loss or damage ensuing as a result of such act or
omission.[428] Several decisions of judicial opinions world over have
emphasized upon the importance of these essentials. In the Rainbow
Warrior case,[429] it was held that international law did not distinguish
between contractual and tortuous responsibility, so that any violation by a
state of any obligation of whatever origin gives rise to state responsibility
and consequently to the duty of reparation. Re-affirming this point of view,
the ICJ ruled in the Gabcikovo-Nagymaros dam case,[430] that a
determination of whether a convention is or is not in force, and whether it
has or has not been properly suspended or denounced, is to be made
pursuant to the law of treaties. On the other hand, an evaluation of the extent
to which the suspicion or denunciation of a convention, as seen
incompatible with the law of treaties, involves the responsibility of the state
which proceeded to it, is to be made under the law of state responsibility.
[431]
In addition to crystallized judicial opinion, the arena of state responsibility
is largely constructed by the International Law Commission. The crux of the
conceptual framework of state responsibility is found under Article 1 and
Article 2. Article 1 reemphasizes the general rule that is supported by wide
state practice, that every intentionally wrongful act of a state entails the
international responsibility of that state. Article 2 indicates that there occurs
an internationally wrongful act of a state when the conduct consists of an
action or omission that is attributable to the state under International Law,
and constitutes a breach of an international obligation of that state.[432]
Having laid these points down, it must be clear that whether an act is such
that it warrants state responsibility is something within the ambit of
international law to judge. It is in the light of this rule that Article 3 has been
included under the Draft Articles, as purporting that international law shall
determine what constitutes an internationally wrongful act, and not
municipal law. A breach of an international obligation occurs when an act of
that state is not in conformity with what is required of it by that obligation,
regardless of its origin or character, as per Article 12. Article 13 holds that
an act of a state shall not be considered a breach of an international
obligation unless the state is bound by the obligation in question at the time
the act occurs.
A breach need not be a one-time event, if the state in question is repetitively
indulging in conducting the act or omission, thereby repetitively injuring the
other state. This is called a continuing breach. Article 14 states that a breach
111

that is of a continuing nature extends over the entire period during which the
act continues and remains not in conformity with the international obligation
in question. Article 15 states that a breach that consists of a composite act
will also extend over the entire period during which the act or omission
continues and remains not in conformity with the international obligation. A
state assisting, directing or controlling another state,[433] or coercing
another state,[434] to commit an internationally wrongful act will also be
responsible if it so acted with knowledge of the circumstances and where it
would be wrongful if committed by that state.[435]
Having understood the core contents of the law on state responsibility, it is
essential to note that many a time, doubts arise as to whether these legal
provisions are exclusive, and distinct, or whether they overlap into any
sphere of international law. The generic tendency is of course, to view it as
distinct,[436] however, it cannot be ignored that it does indeed function in
conjunction with other dimensions of the legal system. The issue was
discussed at length in the Rainbow Warrior Arbitration case.[437] In
1985, the Rainbow Warrior vessel, while moored at harbor in New
Zealand, was attacked in an act that involved two French agents. The vessel
was damaged, leading New Zealand to protest against the same. The
Secretary General ruled in capacity of a mediator, and as consequently
agreed by the states, the two agents were to be imprisoned at a French base
in the Pacific for three years. But, both agents were allowed to return to
France before the expiration of the stipulated period, which led to New
Zealands claim that the agreement had been breached. The French
government contended that the Law of Treaties was irrelevant, and that it
was defended by the defense of force majeure under the law of state
responsibility. The tribunal concluded that France had established a clear
defense, and went on to conclude that there was no difference in
International Law between contractual and tortuous obligations, and
reparations for the breach of both itself will arise in both cases. The
tribunal observed that in principle, a state could validly raise a defense
under the law of state responsibility that was otherwise not available in the
law of treaties.
Fault as a Basis of Responsibility
Many a time, varying perceptions have been known to have arisen in
relation to whether fault can be deemed a basis for state responsibility. The
objective responsibility theory contends that the state is strictly responsible
without any importance attached to fault as a basis. The subjective
responsibility theory contends that a state can be held responsible only if
112

there is proof of the element of dolus, which means intention, or culpa

which means negligence. Only if either exists, can the state be held
responsible. Most scholastic opinion and judicial precedents have been
known to lean towards the objective theory of state responsibility.
In the Neer Claim,[438] an American Superintendent of a Mexican mine
was shot. The USA claimed damages on behalf of the surviving family
members for the lackadaisical handling of all investigations. Using the
objective theory, the US Claim was disallowed. In the Caire claim,[439]
where a French citizen was shot by Mexican soldiers for failing to give
them 5000 Mexican dollars, it was decided that Mexico was liable, in
keeping with the objective theory, holding that the responsibility for the acts
of the officials or organs of the state, which may devolve upon it even in the
absence of any fault on its part. However, in the Home Missionary Society
Claims case,[440] evidenced an approach on the lines of the subjective
theory. In this case, the levy of a hut tax sparked off an uprising where the
society property was damaged, and several missionaries were killed. The
outcome of the dispute was that the claim of the society as represented by
the US, was dismissed, holding that it was an established norm in
international law that no government was responsible for the acts of rebels
where by itself it was guilty of no breach of good faith or negligence in
suppressing the revolt. However, it must be kept in mind that this decision
was in tandem with the question of insurgency alone, and hence a generic
inference cannot be effectively drawn.
In the Corfu Channel Case,[441] the ICJ indicated a view in favour of the
principle of subjective responsibility, holding that it cannot be concluded
from the fact of the control exercised by a state over its territory and waters
that that state necessarily knew or ought to have known if any unlawful act
perpetrated therein, nor yet that it necessarily knew or should have known
the authors of such act or omission. Nevertheless, any fact of exclusive
control over territory has bearing upon the methods of proof available to
establish the knowledge of that state as to the events in question. Given the
high threshold of evidence required in such judicial matters, the victim state
should be allowed a more liberal recourse to inferences of fact and
circumstantial evidence.
It must be remembered that the question of prima facie responsibility for
any unlawful act committed within the territory of the concerned state,
irrespective of attribution, oftentimes raises different issues. This, thus,
indicates that it is no proof of the acceptance of the fault theory. Practice
seems strongly evidentiary of the fact that the objective theory is accepted
113

generally. The ILC, however, in its commentary, has emphasized that the
Articles have not taken a definitive position on this controversy, but did note
that the standards as to objective or subjective approaches, fault, negligence
or want of due diligence would vary greatly contextually.[442]
Original and Vicarious Responsibility
Original responsibility clamps down on a state for the acts of its government
and allied entities, while vicarious responsibility arises for the acts of its
citizens and its agents. Original responsibility is essentially that which a
state bears for its own actions, for its governments actions, and for the
actions of the lower agents and private individuals as performed with the
command or authorization of the Government. Vicarious liability arises
when there are acts other than their own, such as those unauthorized acts of
their agents, subjects and aliens on their territorial expanse. The philosophy
underlying vicarious responsibility emanates from the old school of thought
wherein only the state was deemed a subject of International Law, and since
individuals could not be held liable, the state itself as an entity ought to be
held liable on behalf of the individual in question. A state is an inanimate
entity, incapable of acting on its own without the involvement of human
action.
The essential difference between original and vicarious responsibility is
that the former involves a case where the state is directly in breach of legal
obligations binding on it, while the latter is a case of indirect liability. The
legal consequences are not the same for both, since one is a case of neglect
of its own duty and the other is that of anothers duty. A state bears a higher
degree of responsibility when it has neglected its legal duties. In cases of
vicarious responsibility, the State has an obligation to make the concerned
individuals to make reparation.
Imputability of Responsibility
When a state is made absolutely liable wherever an official is involved, it
encourages that state to exercise greater control over its various
departments and representatives. It encourages stringent compliance with
objective standards of conduct in International Relations. However, to hold
a state thus responsible, it is essential to prove a link between the state and
the person, or persons actually committing the unlawful act or omission.
Naturally, because the state is an inanimate abstract legal entity in itself, it
cannot act without the actual intervention of human conduct, particularly that
of its authorized officials and representatives. However, a state is not
responsible under International Law for all acts performed by its nationals.
A state is only liable for those acts that are imputable or attributable to the
114

state. Imputability is that legal fiction which links the actions of, or
omissions of state officials to the State itself, in the process thereby,
rendering the state responsible for the damage ensuing therein to the
property or person of an alien.
State responsibility is an all-encompassing field, including unlawful acts or
omissions committed directly by the state, and directly affecting other states.
In the Nicaragua Case,[443] the ICJ found that acts imputable to the US
clearly included the laying of mines in the Nicaraguan waters, and attacks
on Nicaraguan ports, oil installations and a naval base by its agents.
Similarly, in the Corfu Channel Case,[444] Albania was held responsible
for the consequences emanating from the laying of mines in its territorial
waters on the basis of knowledge possessed by that state, as to the presence
of such mines, albeit the fact that there was no clear cut evidence as to who
laid those mines. In the Rainbow Warrior Arbitration case,[445] when the
vessel of the same name was destroyed by French Agents in New Zealand,
the latter received a sum as compensation from France after liability was
imputed. It is not altogether impossible for a state to be charged with
responsible for the activity of its officials in injuring a national of another
state, and this activity need not be one authorized by the authorities of the
state.
As per A.4 of the ILC Draft Articles, any and every state organs acts,
whether judicial, legislative or executive or any other nature. This is
inclusive of all people and entities having that status in accordance with the
internal law of that state. Both customary law and juristic opinion,[446]
lean towards the view that the conduct of any organ of a state must be
regarded as an act of that state.[447] The term organs is inclusive of all
units and sub-units within a state.[448] Article 5 states that the conduct of
any person or entity that is not an organ of the state under Article 4, but is
empowered by the law of that state to exercise elements of governmental
authority shall be considered as an act of the state under International Law,
as long as such person or entity is acting in that capacity in the particular
instance. This provision covers corporations, private entities and other
entities which retain certain public or regulatory functions. Article 6 of the
Draft Articles holds that the conduct of an organ placed at the disposal of a
state by another state shall be considered as an act of the former state under
International Law, if that organ was acting in the exercise of elements of
governmental authority.
Ultra-Vires Acts
A state may be held responsible for an unlawful act, even if it is beyond the
115

legal capacity of the official involved in the act, provided, the officials have
acted at least to all appearances as competent officials or organs or they
must have used powers or methods appropriate to their official capacity.
[449] In the Youmans claim,[450] unlawful acts by the militia, namely
joining a riot from which they had to protect Americans, and thereby killing
the very ones they had to protect, were imputed to Mexico. The ILC Draft
Articles also touch upon this aspect. Article 7 states that the conduct of an
organ or of a person or entity empowered to exercise elements of
governmental authority shall be considered an act of the concerned state
under International Law in that capacity even if it exceeds its authority or
contravenes instructions.[451] This is an indication of the acceptance of
absolute liability, implying that the objective theory is the correct approach.
[452] Even though a private individual is not regarded as a state official, so
that the state is not liable for his acts, a state may be held responsible for
failing to exercise the control necessary to prevent such acts.[453]
Control and Responsibility- Quantifying the Extent
Oftentimes, the responsibility of states is linked to the extent of control the
state has, over the person or entity. This usually occurs in the context of
private and corporate entities in the private sector that commit any unlawful
acts. Article 8 of the ILC Articles stipulates that the conduct of a person or
group of persons shall be considered as an act of state under International
Law if the persons or group of persons is in fact acting on the instructions
of, or under the direction and control of, that state in carrying out the
conduct. As long as there is clear proof of the instructions given, the
imputation of responsibility is not difficult. But, the proof of direction and
control is an area replete with controversy and difficulty. Such conduct will
be attributable to the state only if the state directed and controlled the
specific operation and the conduct complained of was an integral part of the
operation, as per the ILC Commentary.[454] The most famous case in this
regard is the Nicaragua Case,[455] the ICJ held that in order for the
conduct of the contra guerillas to have been attributable to the US, who had
financed and equipped them, it would, in principle, have to be proved that
the state had effective control of the military and paramilitary operation in
the course of which the alleged violations were committed. The inference
ultimately was that overall general control would not have been sufficient to
impute responsibility.
This effective control approach was modified in the Tadic Case,[456]
where the Yugoslav War Crimes Tribunal adopted a more flexible approach,
holding that the degree of control may vary based on the circumstances and
116

a high threshold might not always be required. The situation would

definitely vary greatly, when the state in question was in clear and
uncontested effective control of the territory where the violation occurred.
Physical control of a territory and not sovereignty or legitimacy of title is
the basis of state liability for acts affecting other states.[457] To be read in
this context, is Article 9, which states that the conduct of a person or a group
of persons shall be considered as an act of the state under International Law
if the person or group was in fact exercising elements of governmental
authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of authority.
[458]
Mob Violence, Insurrections, Civil Wars and State Responsibility
In the context of state responsibility for rioters, violence or rebellious
elements, the extent of responsibility depends on whether the government
has acted in good faith, and without negligence. If there has been good faith
and no negligence, the government is not held responsible for the acts of
rioters and rebels that cause loss or damage.[459] The state has a bounden
duty to display due diligence. As to what the term due diligence means, has
yet not been defined, given he extent of difficulty there exists, in
quantification.[460] Special provisions apply to diplomatic and consular
personnel. Article 10 of the ILC Draft Articles purports that where an
insurrectional movement is successful either in becoming the new
government of a state, or in establishing a new state in part of the territory of
the pre-existing state, it will be responsible for its activities prior to its
assumption of authority.[461]
In Short v. The Islamic Republic of Iran,[462] the Tribunal held that the
International Responsibility of a state can be invoked where the conditions
or events causing the departure of an alien are attributable to it, but that not
all exodus of aliens from a country in a period of political disorder would
as such be attributable to that state. At the time in context, the revolutionary
movement had not been able to establish control over any portion of Iranian
territorial expanse, and the government had depicted that it had lost control.
The acts of the revolutionaries could not be imputed to the government
emerging from the success of the revolution, just as the acts of the
supporters of the prevalent governmental authorities cannot be imputed to
the government itself. The claim for compensation ultimately failed, since
there was no identification made of the agent of the revolutionary movement
the actions of whom forced him to leave Iran. However, in Yeager v. The
Islamic Republic of Iran,[463] the Tribunal awarded compensation for
117

expulsion. The expulsion occurred by way of revolutionary guards, after the

success of the revolution. Though, at the time, the revolutionary guards were
not an official organ of the state, it was held that they were exercising
governmental authority with the knowledge and acquiescence of the
revolutionary state, making Iran liable for their acts.
Between both extremes is the case of Rankin v. The Islamic Republic of
Iran,[464] where the tribunal concluded that the claimant had not proved
that he had left Iran after the revolution due to action by the Iranian
government and the Revolutionary Guards as distinct from learning because
of the general difficulties of life in that state during the revolutionary period.
Thus there was no responsibility imputed. Where any conduct is not
attributable to a state beforehand, but the state itself subsequently
acknowledges the conduct as its own, the state is responsible for it.[465] An
example is for this is the Iranian Hostages Case,[466] where initially the
attack on the US Embassy could not be imputed to Iran, with the subsequent
approval of the Ayatollah Khomeini and other organs, the act became a state
act.

State Responsibility for Injury to Aliens

International law requires that aliens living in a state should be granted the
same rights that the citizens of the state are given. This is a duty on part of
the state. Where an alien suffers any injury due to any agent of a state, the
state itself is responsible. A state owes a duty to the international community
as a whole, to exercise due diligence in preventing its own subjects as also
other foreign subjects within its own territory. If the citizen of a state causes
some damage or harm to an alien on that states territory, the alien gains the
right to file a suit for compensation according to law of that state. Of course,
the decisions of the court bind the aliens, and all rights of appeal, review
and revision flow.
The rules of Human Rights are of fairly recent origin. Despite this being a
recent development, for about over two hundred years, International Law
has laid down a consistently maintained standard for the treatment of aliens.
[467] States are not under a duty to allow aliens into their territorial
expanse, but, if aliens do come in, they are to be treated in a manner
befitting their status as humans. When this is transgressed from, there
happens to be a violation of International Law.[468] These obligations are
categorized as primary rules by the International Law Commission.[469] In
technical terminology, any failure to comply with this minimum international
118

standard causes international responsibility, and the state of the injured

claimant is allowed to exercise its right of diplomatic protection,[470] by
claiming through its diplomatic channels. The claim may be one for
compensation or any other mode of reparation. The claims are usually
always settled by way of negotiation, arbitration, conciliation or even
judicial settlement. It must be remembered that these duties are owed to the
injured state, and not to the injured alien, because the state suffers an injury
when its own citizens themselves suffer injuries. This implies that the
injured state has a choice whether or not to pursue a claim. This was best
explained in the Barcelona Traction Case,[471] where the court held that
within the ambit of International Law, a state may exercise diplomatic
protection by whatever means and to whatever extent it deems fit, in keeping
with its own choices for its own interests. The court went on to enunciate
that the persons, legal or natural, on whose behalf the state acts, cannot do
anything if they feel that their remedy is inadequate. They can only resort to
municipal law, which is again a preponderance of possibilities, because
there need to be avenues open for them in municipal law. The state is the
sole judge where it comes to deciding whether it should grant protection,
and if so, to what extent. This is not to say that international law disregards
the individuals, since the focal point in calculating the extent of loss
suffered is entirely the individual. In the I am Alone case,[472] the USA
sank a British vessel that was smuggling liquor into the United States. The
sinking, though declared illegal, did not attract compensation, since the
same was employed by citizens of the US for the sake of importing liquor.
But, an apology and a sum of US$25,000 was ordered to be paid by the
USA to Britain, for the disrespect to their flag.
In making a claim, it is important that it be presented without any
unreasonable delay.[473] It is also important to note that contributory acts
on part of the alien himself, precludes the state from seeking redressal on
any account. A state cannot claim on behalf of an injured alien, if his hands
are not clean.[474] Again, this matters only if the damage so caused is
proportionate to the damage that ensues.
The Calvo Doctrine
The Calvo Doctrine was propounded by Calvo of Argentina, a publicist,
and contends that during a civil war, the state is not responsible for the
losses suffered by the aliens on its territory, as if this responsibility is
accepted, then bigger nations would gain an excuse to intervene in the
independence of weaker states. The doctrine arose from Calvos's ideas,
expressed in his Derecho Internacional Terico y Prctico de Europa y
119

Amrica.[475] The Doctrine has not been completely accepted by states

such as America and the UK. The Calvo Doctrine often, is found to be
included in contracts, where liability is sought to be averted upon contingent
events. The doctrine was created in the wake of the armed interventions in
Mexico by France in 1838 and 1861 to effectuate certain claims of French
citizens against the Mexican government.[476] At heart, the doctrine is a
justification of the right of governments to be free of interference of any sort.
[477] The Calvo Doctrine provides that aliens are not entitled to rights and
privileges that are not accorded to nationals of a given country, and
therefore, aliens doing business in a given country may seek redress for any
grievances only before local authorities.[478] The corollary of this concept
is that governments can have no greater responsibility toward aliens than
they have to their own citizens.[479] In the Orinoco Steamship Co. Case,
[480] the arbitral tribunal did not accept the Calvo Clauses inclusion. The
leading arbitral decision addressing the validity of the Calvo Clause is
North American Dredging Co. of Texas (United States of America v.
United Mexican States).[481] The U.S. government asserted a claim for
$233,000 on behalf of a U.S. corporation for breach of a contract for
dredging a Mexican port. The contract provided in Article 18 that the U.S.
company would be considered as a Mexican in all matters concerning the
contract, it would not have any rights aside of those granted to Mexicans,
and that diplomatic intervention on its behalf was not permitted. The
Convention that created the Claims Commission included under Article V a
waiver of any necessity for the parties or their citizens to exhaust local
remedies as a condition precedent to asserting their claims. Despite its
acceptance in Latin America, the Calvo Clause has not been generally
accepted by nations outside Latin America, and has not become a generally
accepted principle of customary international law.[482] Over the years, the
clause seems to have lost much of its appeal and controversy.[483]
Generally, the United States government today does not intervene
diplomatically on behalf of its citizens in disputes with Latin American
governments except in cases of flagrant denials of justice.[484]
Defenses to State Responsibility
State responsibility is not absolute, but is subject to certain defenses, which
flow from circumstances that oblige a state to act in a certain manner, or
make a state act in such a manner. These defenses are stipulated under the
ILC Draft Articles, and are also existent norms under customary practice.
(a) Consent: Where a state consents to an act by another state which
120

would otherwise constitute an unlawful act, wrongfulness is precluded

provided that the act is within the limits of the consent given.[485]
When there is a dispatch of troops from one state to another, at the
request of the latter, the latter state cannot hold the former state liable
for any acts of the troops.
(b) Self-Defense:[486] When an act is undertaken in conformity with
the UN Charter, as self-defense, a state is precluded from being held
responsible. This covers self-defense as under customary International
Law and as under the UN Charter, which, under A.51, speaks of selfdefense as being an inherent right of an individual state, and as being
a collective right as well. However, the ILC clarifies that the fact that
an act is taken in self-defense does not preclude all wrongfulness,
because at all times, human rights and humanitarian laws have to be
respected. As stated in the Legality of the Threat of Use of Nuclear
Weapons case,[487] respect for the environment is one of the elements
that go to assessing whether an action is in conformity with the
principles of necessity and proportionality, and thus, is in accordance
with the right to self-defense.
(c) Countermeasures: Article 22 of the ILC Draft Articles states that if
an act constitutes a countermeasure, it precludes wrongfulness and
averts responsibility for the state.[488] Originally, the word reprisal
was used to depict such acts, and meant any act otherwise unlawful,
but rendered legitimate by way of the prior application of unlawful
force.[489] A countermeasure is different from Article 60 of the
Vienna Convention on the Law of Treaties, which speaks of the
consequences that emanate from the material breach of a treaty, holding
that the other parties to a treaty may well terminate or suspend the
treaty. Countermeasures do not affect the legal validity of the
obligation that has been breached, by way of a reprisal. In the recent
decision in the Gabcikovo-Nagymaros Project Case,[490] the ICJ
enunciated that in order to be justifiable, a counter-measure must meet
certain conditions. Firstly, it must be an act in response to a prior
internationally wrongful act of another state and must be directed
against that state. Secondly, the injured state must have called upon the
state committing the wrongful act to discontinue its wrongful conduct
or to make reparation for it. Thirdly, the countermeasure must be
commensurate with the injury suffered, taking account of the rights in
question. Lastly, its purpose must be to induce the wrongdoing state to
comply with its obligations under International Law, and the measure
must therefore be reversible. Chapter II of the ILC Draft Articles,
121

specifically the articles numbered 49 to 53 essentially dictate the rules

for countermeasures. Article 49 states that an injured state may only
take countermeasures against a state responsible for the wrongful act in
order to induce the latter to comply with the obligations consequent
upon the wrongful act. A countermeasure is limited only to the extent of
non-performance of the obligation, and must be taken in such a way as
to allow the state to resume the performance of the obligation. Article
50 clarifies that countermeasures shall not affect the obligation of the
state to refrain from the threat or use of force as under the UN Charter,
obligations to protect human rights, to prohibit reprisals of a
humanitarian character, other jus cogens obligations and obligations
under any applicable dispute settlement procedure between the two
states.[491] At all times, the state taking the countermeasure is under
an obligation to respect and uphold the inviolability of diplomatic and
consular agents, premises, archives and documents. Article 51 holds as
important the requirement for proportionality, noting that
countermeasures must be commensurate with the injury suffered taking
into account the gravity of the internationally wrongful acts and the
rights in question.[492] Article 52 states that before taking up
countermeasures, the injured state must call upon the responsible state
to fulfill its obligations and notify that state of any decision to take
countermeasures, and must offer to negotiate. The injured state may
take any such countermeasures as it deems necessary to preserve its
own rights. However, the countermeasures must cease where either the
wrongful acts themselves have ceased, or, the matter is pending before
a court or a tribunal with powers to take binding decisions, then
countermeasures should cease, or, if not yet taken, should not be taken.
[493] Once the state has complied with its obligations, the
countermeasures should cease.
(d) Force Majeure: Force majeure refers to those acts that are out of
the control of the entity, and hence cannot be averted. They refer to the
acts of god, or the acts of any entity that wields a higher power beyond
human control. Force majeure has long been accepted as precluding
wrongfulness,[494] and the standard of proof to be advanced is rather
high. War was rejected as a form of force majeure in the Serbian
Loans Case,[495] where the First World War was cited as the reason
for Serbias impossibility to repay a loan. Article 23 of the ILC
Articles provides that force majeure can be construed as a ground
precluding state responsibility. In the Gill Case,[496] a house that
belonged to a British National, in Mexico had been destroyed as a
122

consequence of a sudden and unforeseen action by the opponents of the

Mexican Government. The commission held that a failure to prevent
the act was due to a genuine inability to take action in the face of a
sudden situation, thus, is the occurrence of any event that is beyond the
control of the state. There has to be a constraint which the state was
unable to avoid or oppose by its own power.[497] Force Majeure was
taken up as a defense in the Rainbow Warrior Arbitration,[498]
where the tribunal stated that the test of applicability of this doctrine
was one of absolute and material impossibility, and a circumstance
rendering the performance of an obligation more difficult or
burdensome did not constitute a case of force majeure.
(e) Distress: Article 24 of the ILC Draft Articles states that
wrongfulness is precluded if the author of the conduct concerned had
no other reasonable way in a situation of distress of saving the authors
life or the lives of other persons entrusted to his care.[499] An
example of this is the agreement in the 1946 US-Yugoslav
correspondence, which specified that only in an emergency would
unauthorized entry into foreign airspace be acceptable, or the seeking
of safe haven in a foreign port without sanction by a ships captain in
stormy conditions.[500] Distress differs from force majeure, given that
it has an element of choice involved, but oftentimes, this is illusory,
given that in both cases, extreme peril exists and whether or not there
is a choice, is highly debatable.[501] In the Rainbow Warrior
Arbitration,[502] the tribunal enunciated three conditions as being
necessary preconditions for the defense of distress to be applicable.
First, there should be exceptional circumstances of extreme urgency,
recognized by the other interested party, or is clearly demonstrated.
Second, the re-establishment of the original situation as soon as the
reasons of emergency invoked to justify the breach of the obligation
has disappeared, and third, the existence of a good faith effort to try
and obtain the consent of the other state based on an agreement.
(f) Necessity: Article 25 provides that necessity may not be invoked
unless the act was the only means for the state to safeguard an essential
interest against a grave and imminent peril, and the act does not
seriously prejudice a crucial interest of the Alien states or of the
International Community as a whole. Necessity cannot be invoked if
the state itself has contributed towards the creation of the situation of
necessity.[503] The Torrey Canyon case,[504] is an example of this
kind, where a Liberian oil tanker spilled large quantities of oil when it
went aground off the UK bombed the ship. This was deemed a
123

legitimate action by the ILC.[505] The defense of necessity has often

been deemed controversial.[506] It is a ground well recognized and
accepted in customary law, and precludes responsibility for a state if
proved.[507] In M/V Saiga No.2,[508] the ITLOS dismissed the
doctrine of necessity, but found that it did not apply as no evidence had
been produced by Guinea to show that its essential interests were in
grave and imminent peril, and Guineas interests in maximizing its tax
revenue from the sale of gas oil to fishing vessels could be safeguarded
by means other than extending its customs law to parts of the Exclusive
Economic Zone.
Invoking State Responsibility
Substantively, a state has a right to require a delinquent state to pay for the
damage ensuing as a consequence of its conduct. Article 42 of the ILC Draft
Articles stipulates that a state is entitled as an injured state to invoke
responsibility of another state, if the obligation breached is owed to that
state individually, or to a group of states, including that state or to the
international community as a whole, and the breach of the obligation
specifically affects that state or is of such character as radically to change
the position of all the other states to which the obligation is owed with
respect to the further performance of the obligation. Where there has been a
waiver of the claim, or by way of conduct, if there has been any
acquiescence in the lapse of the claim, responsibility may not be invoked.
[509] Waivers, if any, need to be clear and unequivocal.[510] Acquiescence
is judged based on the facts and circumstances.[511] If several states are
injured as a consequence of the same wrongful act, each state may
separately invoke responsibility,[512] and, if several states are responsible,
each states responsibility may be invoked by the injured state.[513]
Obligations owed by a state towards the international community as a whole
is distinct from its obligations as owed to another state.[514] Article 48
states that a state other than an injured state may invoke the responsibility of
another state if either the obligation is owed to a group of states including
that state, and is established for the protection of a collective interest of the
group, or the obligation breached is owed to the international community as
a whole.
Consequences of Internationally Wrongful Acts
Fundamentally, the breach of an international obligation warrants two types
of legal consequences. Primarily, it creates new obligations for the
breaching state, which may take the form of duties of cessation and nonrepetition as described under Article 30 of the ILC Draft Articles, and a
124

duty to make full reparation as under Article 31. Article 33(1) categorizes
these secondary obligations as being owed to other states or to the
international community as a whole, hinting at a possible erga omnes
feature. The articles indirectly acknowledge in the form of a savings clause,
the fact that states may owe secondary obligations to non-state actors such
as individuals or international organizations. Secondly, the articles create
new rights for the injured states, namely, the right to invoke responsibility as
under Articles 42 and 48, and a limited right to take countermeasures as
described under Articles 49-53. These rights lean heavily towards states
and do not deal with how state responsibility is to be implemented if the
holder of the right is an individual or an organization. The chief element of
progressive development in this area is Article 48, which states that certain
violations of international obligations can affect the international community
as a whole such that state responsibility can be invoked by states on behalf
of the larger community. This provision is a manifestation of the Barcelona
Traction decision by the ICJ that some obligations owed are called erga
omnes, toward the international community as a whole.[515]
Cessation
Cessation refers to ceasing the act that affects other states adversely, for
which the wrongdoing state is deemed responsible. The state responsible
for the internationally wrongful act is under an obligation to cease that act, if
it is a continuing one, and also to offer appropriate assurances and
guarantees of non-repetition if circumstances so require.[516] For cessation
to arise, it is essential that the wrongful act be of a continuous character, and
that the violated rule must still be in force at the date the order is given.
[517] In the La Grand case,[518] the court held that when a state commits
to ensure implementation of specific measures, it is sufficient to meet the
injured states request for a general assurance of non-repetition.
Reparation
Reparation refers to the remedying of a breach of an international obligation
for which the concerned state is responsible. The core precepts of this
principle were laid down in the Chorzow Factory Case,[519] where the
PCIJ held that the actual notion of an illegal act contains the essential
principle that reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would
have existed if that act had not been committed. Subsequent jurisprudence
has reaffirmed this principle.[520] The obligation to make reparations is
entirely governed by International Law, regardless of what domestic law
contends.[521] Full reparations for the injury caused by the internationally
125

wrongful act shall take the form of restitution, compensation and

satisfaction, individually in combination.[522]
Restitution implies restoration of the situation that existed prior to the
wrongful act. Restitution in kind is one of the most commonly practiced
modes of reparation, given that it re-establishes the original situation.
Restitution has been frequently seen in the past, but is presently much lesser
in the practical realm in the present day, since the nature of disputes as
between states has also followed a different trajectory. Modern disputes
deal with issues of expropriation, which stand out as situations that pose
difficulty in returning the expropriated property to the entity.[523] Article
35 stipulates restitution while keeping in mind the fact that to the extent that
it is not materially impossible and does not involve a burden out of all
proportion to the benefit deriving from France to their previous place of
confinement in the Pacific, calling it restituto in integrum. France argued
that cessation was an appropriate remedy, which in the present situation was
barred by time.[524] The concept of restituto in integrum has been
employed merely as a vehicle for establishing the amount of damages.[525]
In the Texaco Case,[526] it was held that restitution in kind under
international law constituted the normal sanction for non-performance of
contractual obligations and that it is inapplicable only to the extent that
restoration the status quo ante is impossible. This approach seems a
violation of sovereignty, in that the enforcement of such a restitution may
create several problems.[527]

Compensation
Monetary compensation is an integral part of reparation given that it is a
means to repatriate in equal value to replace the asset confiscated. Article
36 of the ILC Draft Articles states that where damage is not made good of
restitution the state ought to give compensation.[528] The quantum of
compensation to be provided shall cover any financially assessable damage
including loss of profits as long as it is proved.[529] However, as pointed
out in Velasquez Rodriguez v. Honduras,[530] punitive or exemplary
damages go beyond the concept of reparation, and are not a part of
international law as such. While the method of calculation employed varies
significantly based on the property involved, it is usually assessed on the
basis of fair market value.[531] Damage includes material and nonmaterial damage.[532] In the Im Alone case,[533] compensation was
awarded for the indignity suffered by Canada when its ship registered in
126

Montreal was unlawfully sunk. In the Rainbow Warrior Arbitration,[534]

France was ordered to pay $7 million to New Zealand for all the damage it
had suffered.
Satisfaction
Satisfaction as a mode of reparation implies non-monetary compensation,
and includes official apologies, punishment of guilty officials and the actual
formal acknowledgment of the unlawful character of an act.[535]
Satisfaction was deemed to be approved by long-standing practice, and the
international courts themselves, where moral or legal damage ensued
directly to a state.[536] Sometimes, an injured state may seek only a
declaration that the activity complained of is illegal.[537] However, a
dissenting opinion was preferred in the Nuclear Tests Case,[538] where the
court held otherwise. This is something common in the context of territorial
disputes. Article 37 of the ILC Draft Articles stipulates that a state that is
responsible for a wrongful act is obliged to offer satisfaction for the injury
thereby caused in so far as it cannot be made good by restitution or
compensation. Satisfaction comprises an acknowledgment of breach,
expression of regret, apology or any similar act,[539] or assurance or
guarantee of non-repetition.[540]
State Responsibility and Jus Cogens
Jus Cogens refers to all those peremptory norms in International Law from
which no derogation is permissible. State responsibility in relation to a
breach of jus cogens warrants a higher degree of liability, given the nature
of the obligation in question. A distinction was drawn in this regard, under
Article 19 of the ILC Draft Articles 1996, between international crimes and
international delicts, within the ambit of unlawful acts.[541] Article 19
states that an internationally wrongful act which emanates from the breach
by a state of an international obligation so essential for the protection of
fundamental interests of the international community that its breach was
recognized as a whole constitutes an international crime. The Article termed
all other internationally wrongful acts as delicts.[542] Such international
crimes include aggression, colonial domination, slavery, genocide,
apartheid and torture. A state that deals with such crimes, and encourages
their performance, ends up committing a flagrant violation of its jus cogens
obligations. This raises a question as to how a state may be held criminally
responsible, which in turn has unfailingly struck a discordant note, paving
the way for ample consternation.[543] Some scholastic opinion evidences
the fact that the concept has no legal value and cannot be justified in
principle, because exacting penal sanctions could only pave the way for
127

instability.[544] A diametrically opposed school of thought, however,

purports a different opinion altogether, contending that the attitude towards
certain crimes by states has altered with a view to bring them within the
realm of International Law.[545] The inclusion of Article 19 was justified
on three grounds. Primarily, that the concept of jus cogens has evolved from
scratch as a set of integral rules, as emphasized under Article 53. Secondly,
individual criminal responsibility has evolved as an individual unit under
International Law, and, thirdly, the UN Charter provides that there can be
enforcement action against a state where there is a use of, or threat to use
force or aggression.[546] This approach was changed,[547] due to the
controversial nature of the suggestion, and thus, mention of international
crimes of states was excluded, and emphasis was laid on the consequences
of a breach of erga omnes obligations and jus cogens obligations. Article
41 of the Draft Articles provides that the states are obliged to cooperate to
bring an end through lawful means, any breach by a state, of an obligation
arising under a peremptory norm of International Law and not to recognize
as lawful, any such situation.
Diplomatic Claims and the Nationality of Claims
When it comes to any damage or injury suffered by the nationals of a state,
the doctrine of state responsibility comprises two aspects, namely, the
attribution of the acts of its organs and officials to the delinquent state, and
the capacity of the other state to adopt the claims of the injured party.
Article 44 of the ILC Draft Articles states that the responsibility of a state
may not be invoked, if the claim of such state, is not brought in accordance
with any applicable rule relating to the nationality of claims.[548]
Nationality is the factor that links a state to an individual, thereby opening
up an avenue for the individual, to enjoy the benefits under international
law. The ILC has also come out with a series of Draft Articles on
Diplomatic Protection,[549] of which Article 1 states that Diplomatic
protection comprises of resort to diplomatic action or other means of
peaceful settlement by a state adopting in its own right the cause of its
nationals in respect of an injury to that national arising from an
internationally wrongful act of another state. Every state has a bounden duty
to protect its nationals, and in the process, it may take up claims against
other states. A state, however, is not obliged to provide diplomatic
protection for their nationals abroad.[550] Once this is done, the claim
becomes that of the state. This arises as a consequence of the historical
unwillingness to allow individuals the right under International Law to
prosecute claims against foreign states, for reasons pertaining to state
128

sovereignty and non-intervention in internal affairs of the state. By taking up

the cause of one of its subjects, and by resorting to diplomatic action, or
international judicial proceedings on his behalf, a state is really asserting its
own right, its right to ensure in the person of its subject, the respect for the
rules of International Law.[551] When a state takes up a case on behalf of
its subjects before an international tribunal, the tribunal deems the state as
the sole claimant, since the espousal of the claim by the state warrants that
the state alone shall proceed to sue for the matter, as the individual will no
longer be necessary to pursue the claim once the state comes into play.[552]
Diplomatic protection cannot be deemed intervention contrary to
international law by the concerned state; however, a state us under an
obligation to adopt only the claims of its nationals, and not those of its nonnationals, or foreign subjects. But, Article 7 of the Draft Articles on
Diplomatic Protection states that as an exercise in progressive development
of the law, a state may adopt the claim of a stateless person or refugee who
at the date of the injury and presentation of the claim is lawfully and
habitually resident in that state. This is not the right of the national
concerned, but a right of the state concerned, which it may exercise as per
its discretion.[553] It is not a matter of duty that is incumbent on the state.
[554] A state has full authority to extend its nationality, as explained under
Article 3. This is also enunciated under Article 3 of the Hague Convention
on Certain Questions Relating to the conflict of Nationality laws, 1930.
The right of Diplomatic Protection arises only where there is a genuine link
between the claimant state and its national. This was laid down in the
Nottebohm case.[555] While this may be a generic rule, the facts and
circumstances of each case need to be analyzed. The Nottebohm case[556]
broke new ground by witnessing the exercise of diplomatic protection,
thereby bringing the issue of nationality out of the sphere of domestic
jurisdiction, onto the plane of international law. The court held that as
evidenced by state practice, nationality is a legal manifestation of the link
between a person and the state that grants nationality. In this case, the
Liechtenstein government instituted proceedings, seeking restitution and
damages for Nottebohm, against Guatemala, for acts contrary to
International Law, carried out by Guatemala against Nottebohm. Guatemala
questioned Nottebohms right to Nationality of Liechtenstein, and thereby
his right to diplomatic protection. Nottebohm was born in Germany in 1881,
and applied for naturalization in Liechtenstein in 1939. Since 1905, he lived
in Guatemala, and operated his business there. While the court held that
Liechtenstein was free to decide who its nationals were, Guatemalas
recognition of this grant of Liechtensteinian nationality was debatable, as to
129

whether it was mandatory or not. The Court observed that Nottebohm had
spent a very short time in Liechtenstein, and aside of this, and the
naturalization process, precious little else existed between him and
Liechtenstein. He had lived in Guatemala for 30 years. The court concluded
that Liechtenstein could not extend diplomatic protection because nationality
was granted without regard to the general concept as adopted in
International Relations. The extension of the doctrine of genuine connection
to the sphere of diplomatic protection from the field of dual nationality
heralded a new, albeit much criticized move.[557] However, the ILC Draft
Articles on Diplomatic Protection, adopted in 2002 did not require the
establishment of a genuine link as a requirement of nationality,[558] and the
commentary contends that the Nottebohm case should be contextualized to
its own facts alone, and understood in the light of all the peculiar to the
case.
In determining the link between the individual and the state, it is extremely
important to note that the purported status of nationality must have existed at
the date of the injury, and should continue until at least the date on which the
formal presentation of the claim is made. However, the continuance of
nationality hinges upon a wide catena of factual issues, agreements made, or
any other relevant factors as existent between the parties involved.[559]
Dual nationality allows the concerned individual to possess the nationality
of two states. In such cases, either state of which he is a national may adopt
his claim against a third state.[560] Practice of course, is evidence of the
fact that there is no need to establish a genuine link between the state of
nationality and the dual national. Where there is more than one state of
nationality, the rule appears to be that the state with which he has the more
effective connection may be able to take up cudgels on his behalf, as
opposed to the other state. The principle is based on the rules of state
sovereignty and sovereign equality, which excludes within its ambit the
principles of diplomatic protection in case of dual nationality, and must
yield before the rule of effective nationality, wherever such nationality is
that of the claimant state.[561] Article 6 of the ILC Draft Articles on
Diplomatic Protection provides that a state of nationality may not exercise
diplomatic protection in respect of a person against a state of which the
person is also a national unless the nationality of the former state is
predominant, both at the time of the injury and at the date of the official
presentation of the claim.[562]
Where corporations are concerned, however, there needs to be a tangible
link between it and the state seeking to take up its claim. Jurisprudence
reveals that importance has been attached to various factors, ranging from
130

the incorporation of the company to the maintenance of its administrative

centre and the existence of substantial holdings by nationals in the company.
[563] In the Barcelona Traction case,[564] the ICJ held that a state under
the laws of which the corporation was incorporated and in whose territory
its registered office is situated, could rightfully espouse its claim. As for
ships, the practice differs. In M/V Saiga (No.2),[565] the tribunal held that
the flag state bears the rights and obligations with regard to the ship, so this
implies that every person involved with, or interested in its obligations are
linked to the flag state and their nationalities are irrelevant.
Taking up Claims: The importance of Exhaustion of Local Remedies
As a rule, customary international law dictates that before international
proceedings are instituted, or before claims are raised, all remedies
provided by the state have to be exhausted first.[566] The point of this
canon is to facilitate the state to have an occasion to remedy the wrong that
has occurred within its own legal order and to reduce the amount of
international claims that may be brought. Article 44 of the ILC Draft
Articles on State Responsibility provides that state responsibility may not
be invoked if the claim is such that the rule of exhaustion of local remedies
applies, and any available and effective local remedy has not been
exhausted.[567] The Ambatielos Arbitration,[568] between Greece and
Britain witnessed the application of this rule where the remedies available
under the English Law were not exhausted. The rule applies only to
remedies that are available, that are of an exhaustive nature. Not having
gone on appeal is no ground to dismiss a case, where such appeal would not
affect the basic outcome of the case.[569] The rule does not apply in cases
where one state has been guilty of a direct breach of International Law,
causing immediate injury to another state, but applies where the state is
complaining of an injury to its nationals.[570] Treaty stipulations may
waive local remedy requirements as seen under Article XI of the
Convention on International Liability for Damage caused by Space Objects,
1972. In Elettronica Sicula SpA (ELSI) case,[571] the court held that the
rule is an integral part of customary international law. The case involved an
action brought by the US against Italy, alleging injuries to Italian interests of
two US based corporations. Italy contended that the action was barred by
the exhaustion of domestic remedies rule, while the US countered that
argument by submitting that the dispute was submitted under the Treaty of
Friendship, Commerce and Navigation, 1948, between both states, which
spoke of submitting disputes to the ICJ and did not mandate the exhaustion
of local remedies. However, the court held that though the parties to a treaty
131

may well dabble in forum shopping, it found itself unable to accept that an
important rule of customary international law should be held to have been
tacitly dispensed with. The court went on to hold that the doctrine had no
applicability to the present matter, since the treaty in question had been
violated. The sum and substance of the dispute was that there was alleged
damage to two US Corporations, and given that the claims involved a
generous mix of interests of both states. Finally, the claim that local
remedies had not in fact been exhausted in the case because both US
Corporations had not raised the treaty issue before the Italian Courts was
rejected. The court was not persuaded that there was some remedy which
the corporations should have exhausted.
Treatment of Aliens and State Responsibility
Protection of foreign nationals involves plenty of different approaches
adopted by different countries of the Western and Developing blocks. The
general tendency of developing countries and communist countries formerly,
was to eagerly seek to reduce what the deemed as the privileges accorded
to capitalist states by International Law. Western nations have aspired for
protection of investments and their nationals abroad, and their property.
States in the West have contended the existence of an international minimum
standard for the protection of foreign nationals that needs to be upheld,
irrespective of how it treats all its own nationals. Other states contend that a
state needs to treat the alien as it treats its own nationals. States, such as
those of Latin American origin perceive the minimum standard concept as a
ground of interference in internal affairs of other states.[572]
The Calvo Doctrine evolved at this juncture, which re-ascertained the
principle of non-intervention, asserting that aliens were entitled only to such
rights as were accorded to nationals, and thus, had to seek redress for
grievances exclusively in the domestic sphere.[573] The doctrine was
essentially a shield against state intervention. In the Neer Claim,[574] an
American superintendent of a mine in Mexico had been killed, and the
commission held that the propriety of governmental acts should be put to the
test of international standards. In the Certain German Interests in Polish
Upper Silesia Case,[575] the Court upheld the existence of a common or
generally accepted norm under International Law, respecting the treatment of
aliens, applicable irrespective of what municipal law contends. The Garcia
case,[576] followed by the Chattin Case,[577] witnessed the view that an
international standard needs to be adhered to; but, in the Roberts claim,
[578] a reference was made to the test as to whether aliens were treated in
accordance with ordinary standards of civilization. A rather high threshold
132

is specified before the minimum standards are made applicable.[579] The

general perception of this minimum is that there is no defined standard
with a fixed content, but comprises a process of decision,[580] a process
that involves an examination of the responsibility of the state for the injury
to the alien in the light of all the circumstances of the particular case.[581]
The concept refers to the improper administration of civil and criminal
justice as regards an alien.[582] It would include the failure to apprehend
and prosecute those causing wrongs to the aliens as was seen in the Janes
Claim,[583] where an American citizen was killed in Mexico, the identity
of the killer being within the knowledge of the government that actually
ended up doing nothing. The widow was awarded compensation for nonaction, for unreasonably lengthy detention, and unlawful treatment in prison.
[584] The evolution of human rights has created a certain minimum standard
of state behaviour in pertinence to civil and political rights. None of the
instruments distinguish nationals and aliens, specifically applying to
individuals within the territory and subject to the jurisdiction of the state
without discrimination.[585] Specific efforts are being made in pertinence
to non-nationals of the country in which they live.[586]
Without doubt, a plethora of differences exist in the rights of nationals and
aliens. Aliens have no political rights and may be barred from employment
in certain spheres, such as government jobs, while being subject to the local
law at all times. A state has absolute authority to refuse the influx of aliens,
or to allow admittance of aliens. Jurisprudence depicts that a state is
obliged to divulge convincing reasons for expelling an alien. In the Boffolo
Case,[587] the court held that expulsion can be resorted to only in extreme
circumstances, in a manner least injurious to the alien. Reasons for
expulsion need to be enunciated whenever demanded. The onus of proof of
the wrongfulness of expulsion falls on the claimant alleging wrongful
expulsion.[588] Expelled aliens are required to be taken back by the state
whose nationality it possesses.[589]
Expropriation and State Responsibility
With the expansion of the world economy and the evolution of globalization,
privatization and liberalization as phenomena that have opened up national
economic frontiers, developed nations began heavily investing in
developing areas of the world, colonizing states, in the process.
Independence was granted at the end of the Second World War, the
properties and influence of nationalization measures by the Soviet Union
began thawing under pressure. Two opposing objectives frame the rules
relating to expropriation in the international sphere. Primarily, countries
133

dabbling with capital exports are mostly in need of some form of protection
prior to investing abroad. Secondly, countries importing capital are wary of
the power of foreign investors and the currency drain, and are oft stimulated
to take over such enterprises. This has paved the way for nationalization,
given that every state aspires to acquire control of privately owned
property, given that it is vital to socio-economic progress. No doubt an
important requirement, there arises no question as to the validity of
nationalization. However, what happens when a foreigners property is
sought to be expropriated? If a state were to refute expropriation of any
aliens property it would embitter its citizens by indirectly conferring
privileges to foreign property. Therefore, a state can most certainly
expropriate foreign property, as long as it fulfills all the requisite
conditions.[590]
The next issue is as to when international law has a role to play in such
situations. In Texaco v. Libya,[591] the court held that by stating that the law
governing the contract referred to general principles of law which was
taken to incorporate international law; by including an international
arbitration clause for the settlement of disputes; by including an
international arbitration clause for the settlement of disputes; by including a
stabilization clause to prevent unilateral variations of the terms of the
agreement, international law enters the sphere of the agreement. Where
expropriation is unlawful, international law is the yardstick used to
determine its lawfulness or otherwise. The following things need to be taken
into consideration while expropriating an aliens property.
Property: In the words of Higgins, there exists an almost total absence of
any analysis of conceptual aspects of property.[592] The term property is
inclusive of several things, such as physical objects and even abstract
entities. Property has been discussed as the concept of all movable and
immovable property, whether tangible or intangible, including all industrial,
literary and artistic property as well as rights and interests in property.[593]
Concession rights have been deemed incorporeal property.[594]
Expropriation: The term expropriation conveys a clear meaning, i.e. action
involving taking of property.[595] The 1961 Harvard Draft includes any
such unreasonable interference with the use, enjoyment or disposal of
property as to justify any interference with the use, enjoyment or disposal of
property as to justify an interference that the owner thereof will not be able
to use, enjoy or dispose off the property within a reasonable period of time
after the inception of such interference.[596] Where an entity is rendered
134

completely incapable of exercising and enjoying any of its rights of

ownership in relation to their properties in another state, it is a case of
expropriation. In Starett Housing Corporation v. Government of the
Islamic Republic of Iran,[597]it was held that measures taken by a state
can interfere with property rights to such an extent that these rights are
rendered so useless that they must be deemed to have been expropriated,
even though the state does not purport to have expropriated them and the
legal title to the property formally remains with the original owner. The
seizure of a controlling stock interest in a foreign corporation is
expropriation.[598] In Biloune v. Ghana Investment Centre,[599] when a
stop order was issued against an investor who began construction work
relying upon the government representations without building permits, it
was deemed indirect expropriation. Where the taking of property is in
effect, a process, it will be difficult to determine at what point the process
becomes expropriation. Determination is essential for certain issues such as
calculation of compensation for expropriation. In Santa Elena v. Costa
Rica,[600] the Tribunal stated that a property has been expropriated when
the effect of the measures taken by the state has been to deprive the owner of
title, possession, or access to the benefit and economic use of his property.
This is essentially a factual issue, to be scrutinized with due consideration
of the facts of the case. Expropriation includes the taking away of closely
connected ancillary rights, such as patents and contracts that are not directly
nationalized.[601]
Public Purpose: Nationalization is, without doubt, a measure for the socioeconomic advancement of the state and hence, the underlying purpose must
be public welfare. This obviously mandates a similar line of thinking as
regards the basis of any form of expropriation. As noted by the PCIJ, in the
Certain German Interests in Polish Upper Silesia Case,[602]
expropriation must be for reasons of public utility, judicial liquidation and
similar measures. Stretching this definition brings in ample debate,
particularly as regards how far it may be stretched. In the BP case,[603] the
reason for the expropriation of the BP property was the Libyan point of
view that the UK had encouraged Iran to occupy certain islands in the
Persian Gulf. The acquisition of the stipulated zone was construed to be in
violation of International Law as it was made for purely extraneous reasons,
and bore arbitrariness and discrimination. The public utility principle is not
a necessary prerequisite for the legality of the nationalization, as was held
in the Liamco Case.[604] The UNGA Resolution on Permanent Sovereignty
on Natural Resources, 1962, mentions this requirement under paragraph 4,
135

but A.2(2)(c) of the Charter of Economic Rights and Duties of States, 1974
does not. In Santa Elena v. Costa Rica,[605] the tribunal held that public
purpose is to be the basis of expropriation in International Law for it to be
tenable in law.
Payment of Compensation: When property is taken as part of a move of
expropriation, the concerned individual loses a tangible portion of his
wealth, and in most circumstances, of their sustenance. The requirement to
pay compensation is a standard maintained by several states, and finds
place in several bilateral treaties.[606] Called the Hull Formulation, the
principle is known to have evolved by the US Secretary of State, Hull, on
the occasion of Mexican expropriations.[607] Early cases in International
Law did not rely on the Hull Formulation.[608] The UNGA Resolution on
Permanent Sovereignty on Natural Resources, 1962, mentions appropriate
compensation as a necessity for expropriation. This was deemed a rule of
customary International Law, in the Texaco Case.[609] In the Aminoil
Case,[610] the tribunal held that the standard of appropriate compensation
in the 1962 resolution codifies positive principles. While the compensation
principle finds links with both, international and national law, under the
1962 Resolution, the Charter on Economic Rights and Duties 1974, puts its
application in a straitjacket, exclusively to the domestic sphere of action,
which is not the generally accepted norm of customary law. Section IV(1) of
the World Bank Guidelines on the Treatment of Foreign Direct
Investment[611] provides that a state may not expropriate foreign private
investment except where this is done in accordance with applicable legal
procedures, in pursuance with good faith, of a public purpose, without any
form of discrimination on the basis of nationality and against the payment of
appropriate compensation. Clause 2 of the same section indicates that
compensation will be deemed to be appropriate where it is adequate,
prompt and effective. A.13 of the European Energy Charter Treaty, 1994,
states that expropriation must be for a purpose which is in public interest,
not discriminatory, carried out under due process of law, and accompanied
by the payment of prompt, adequate and effective compensation.[612] There
are plenty of methods as to how to value such assets in particular cases.
[613] The general principle is that of fair market value, which means the
amount that a willing buyer would pay a willing seller for the shares of a
going concern, ignoring the expropriation situation completely.[614] Interest
on the value of the assets so expropriated will also normally be paid.[615]
While these principles are generally agreed upon, there is still much debate
in pertinence to cases of loss of future profits, and any compensation to be
paid for them. The full compensation of prejudice, by awarding to the
136

injured party, the damnum emergens (loss suffered) and lucrum cessans
(expected profits) is a principle common to the main systems of municipal
law, and therefore, a general principle of law which may be considered a
source of international law, although the awarded compensation is only for
directed and foreseeable prejudice, and note remote damage.[616] In the
case of Metaclad Corporation v. United Mexican States,[617] it was
decided that the fair market value of a going concern with a history of
profitable operation may be based on an estimate of future profits subjected
to a discounted cash flow analysis. However, where the enterprise has
either not operated adequately long to set up a performance documentation,
or, where the enterprise has not made a profit, actual investment made must
be taken into consideration.[618] In certain cases, jurisprudence has
indicated the need to peruse the validity of lawfulness of the expropriation
itself.[619] Where an investment was made a short while prior to
nationalization, compensation in an amount equal to the fair market value of
the investment must be given.[620] A clear distinction must be made
between lawful and unlawful expropriations, since the rules applicable to
the compensation to be paid by the expropriating state differ according to
the legal characterization of the taking.[621] Where expropriation was
unlawful, full restitution in kind or its monetary equivalent is necessary to
reestablish the situation that would have remained, had there been no
expropriation.[622] Where it is lawful, the standard is that the payment of
the full value of the undertaking at the moment of dispossession.
Investment Treaties cover within their fold, commercial relations of states.
Such treaties are mostly bilateral.[623] Bilateral treaties essentially work to
ensure that the interests of both states involved, and this is generally
uniform, and evidences general state practice. The generally exhibited
features of such treaties may be taken note of. The prime concepts are
defined broadly. Next, the parties assume to promote and generate
circumstances favourable for investment, aspiring to award such
investments fair and equitable treatment, and also to undertake to keep
away from impairing, by way of any form of bias, the management and use
of any investments. The parties also undertake that the investments by
contracting parties are not to be deemed less favourable than those of other
states. Several states settle their expropriation disputes by lump-sum
settlements at the end of protracted negotiations, most times at values below
that of the current value of the assets involved.
Non-Discrimination: Non-discrimination has been defined as a requirement
for a valid and lawful expropriation.[624] In the Liamco Case,[625] it was
strongly argued that a discriminatory nationalization would be unlawful.
137

Discriminatory treatment has to be proved with astute clarity, thereby

proceeding beyond all reasonable doubt. The onus of proof, anyway, lies
only upon the one that alleges the existence of discrimination.

Chapter 7- State Succession

States are, as pointed out earlier, one of most important subjects of
international law. Dynamism underlies every social, economic and political
entity. No political entity remains completely absolute, in that they also bear
the consequential brunt of change. New states emerge, as old states whittle
away into oblivion.[626] In a constant state of flux, states are always
interacting with other states, and forces in the international realm.
Secessions, mergers, dissolutions and disintegrations come and go, each
orchestrating the emergence onto or disappearance of states from the
international realm. Additionally, governing entities change, different
political parties take charge at different times, altering the state either
governmentally or constitutionally. However, despite all of these changes,
the state retains its original blueprint, as marked characteristically by its
entity, and remains bound by rights and obligations it inherited from the
predecessor entity. This was more of a regular feature at the twilight stages
of the Second World War, where new states mushroomed from under the
thumb of colonial rule, thereby playing a valuable role in contributing to
international law.
When a state has changes in its political set up, such that sovereignty
changes hands in the territorial expanse of the state, plenty of questions
138

arise. When a new state makes its way into the international realm, there
arises questions as to what rights and obligations come into its hands, as to
how far is it expected to be bound by the treaties entered into with other
states, by its predecessor, whether nationality automatically devolves upon
its inmates to replace the erstwhile nationality, what happens to all the
public property owned by the sovereign, and to what extent the sovereign
can be held liable for the liabilities and debts as owed by its predecessor
under international law. These issues do not just remain theoretical debates,
but also open doors for practical difficulties if they remained ungoverned by
requisite rules. The principles of state succession govern these issues, and
comprise a mix of state practice and customary law, and have also been
codified in part in the Vienna Convention on the Succession of States to
Treaties, 1978. Unlike succession in municipal law, succession in
international law is essentially comprised of varied rules with due regard
being afforded to the allied fundamental norms of state sovereignty, equality
of states and the maintenance of anarchy by way of the rule of nonintervention.
Scholastic opinion reveals two basic principles in place. The erstwhile
Roman point of view regards the continuance of legal personality in the
estate, which occurs by way of inheritance.[627] In opposition to this line of
thinking, is a doctrine which basically denied any transmission of rights,
obligations and property interests between the predecessor and successor
sovereigns. This doctrine emerged during the positivist thinking period, in
the 19 Century, and was also expressed in the form of the clean-slate
doctrine, at the end of the Second World War, thereby stipulating that states
emerging from under the thumb of colonial rule were free from
encumbrances of the predecessor sovereign.
State succession rears its head in several defined circumstances, each of
which mirror the mechanisms of acquisition of political sovereignty.
Instances include dismemberment, secession, annexation and mergers. One
common thread linking each of these instances is that a once recognized
entity ceases to exist, either wholly or in part, and a new entity comes into
existence. Despite the issue of state succession, a state is always
responsible for its duties, and is always in possession of its rights in
International Law. The rights and duties are inherent and emanate from
sovereignty, and do not have anything to do with the change of hands in
charge of the state. The distinctions between the various modes of creation
of states are extremely important, since they determine the quintessence of
the rules of law that apply to different situations.
th

139

Most issues of state succession are addressed by treaties specific to the

sphere of activity concerned, as was the case of the Treaty of St. Germain,
1919, that dealt with the succession issues of the entities emanating as a
result of the dissolution of the Austro-Hungarian Empire.[628] If not
treaties, bilateral agreements between the new state and perhaps the
colonial powers that governed them, are useful in settling questions of state
succession. The UK, France and the Netherlands have a long standing
history of having entered into devolution bilateral agreements with colonial
entities seeking decolonization, from under their control. Most such
agreements provided that all rights and benefits, obligations and
responsibilities, in general, devolving upon the colonial power in relation
to the territory in question, all arising out of valid international instruments,
would devolve upon the new state.[629] This system was not deemed
satisfactory, given that several new states emerged after unilaterally
declaring independence. This resulted in periods of paradigm shifts where
treaties entered into by the predecessor state would continue in force, and
be subject to appraisal as to which was to be received, and which is to be
discarded.[630] Those that did not survive under customary international
law were deemed terminated. State succession is generally rather complex.
Most of the rules that constitute the body of law on the subject have evolved
in specific response to particular events in the international scenario, and
there has not really been consistency in practice.[631] There are a few
well-established principles of International Law that apply to state
succession.[632] The application of these principles is to be determined on
a case by case basis, while deriving assistance from the Vienna Conventions
of 1978 and 1983. However, in the German decision in the Espionage
Prosecution case,[633] it was held that state succession is one of the most
disputed areas of international law.
The law on state succession has appropriately been declared as being
chaotic.[634] Most rules of state succession are customary international
law. In the early 1970s, as the dust kicked up by multiple instances of
decolonization and the emergence of new states was only just settling down,
the ILC attempted to codify the law of state succession, eventually emerging
with the Vienna Convention on the Succession of States in Respect of
Treaties, 1978, and the Vienna Convention on Succession of States on States
in Respect of State Property, Archives and Debts, 1983, the former having
come into force in 1996, and the latter not having entered into force just yet,
are also relevant legal texts in relation to the subject. The conventions are
largely codified versions of existent tenets of law, and to some extent,
progressive development. The codification attempt has largely been touted
140

as a failure, since it seemed to focus largely on the special problems and

interests of newly independent situations, while ignoring other situations
that bore significant relevance. Another criticism that has been leveled
against the legal regime is that the rules in both draft treaties have not
always been followed by states in their actual conduct.
Defining State Succession
State succession can be understood as the replacement of one state by
another in the responsibility for the international relations of territory.[635]
The term is used to describe that branch of international law which deals
with the legal consequences of a change in sovereignty over territory.[636]
State succession includes a plethora of issues within its ambit, spawning
from continuity to non-succession. It ultimately deals with a question of a
factual nature, as to whether there has been a change in sovereign authority
within a specific territory. To a very large extent, a factual, or a case-bycase analysis is essential to determine the nature of rules that are to apply to
the new state. What also matters is the role of recognition and acquiescence
in the process.
The date of succession is the date on which the successor state replaces the
predecessor state in the responsibility for the international relations of the
territory to which the succession relates.[637] In most cases, this is
invariably the date of independence. Plenty of issues emerge as a
consequence of the states emergence in the international realm. When a
state slowly disintegrates, a question as to the dates may arise. This, thus,
equally demands a thorough fact-and-circumstance based analysis.
The Element of Continuity
When a new state emerges in the international arena, it must be decided as
to whether the state is a separate creature from its predecessor, or whether it
is a continuation with a modification. India, post partition, was deemed the
same legal entity that British India was, while Pakistan was deemed a
separate state.[638] Yugoslavia is deemed a continual, successor state of
Serbia. While this is the case in partitions and maybe disintegration,
secession of territory from an existing state does not affect the continuity of
the existing state even though its territorial and populations considerably
diminishes by the secession. An example of this is the cession of
Bangladesh from independent Pakistan. This existing state continues to
retain its rights and duties, all, except those that are specifically tied to the
ceded territory. Where deciding as to whether continuity or succession has
occurred as far as either party to the process is concerned, the criteria of
creation of statehood needs to be studied in due detail.
141

Succession in different Contexts

States emerge out of existent states by disintegration, cession, mergers,
annexation and dismemberment. Succession as it rises in each context needs
to be studied in the light of the context involved.
Disintegration
When the USSR disintegrated, the Russian Federation emerged as the
successor of the state.[639] The Council of Heads of State of the
Commonwealth of Independent States, passed a decision dated 21
December, 1991, supporting Russias right to continue in the same capacity
as that of the USSR, with regards to its membership of the UN, including
permanent membership in the UN Security Council and other international
organizations. [640] There was a general consensus in support of Russias
status as the continuation of the USSR as a member of the UN, although not
all instruments of the Commonwealth of Independent States were consistent
with the continuity principle.
Another example is the case of the three Baltic States, namely, Estonia,
Latvia and Lithuania, which gained independence after the First World War,
and were subsequently annexed by the Soviet Union in 1940- an act that was
not recognized by some states, such as the United States, but was accepted
de facto by some states, such as the United Kingdom.[641]
The Baltic States declared independence in 1991.[642] In the same year, the
European Community adopted a Declaration welcoming the restoration of
sovereignty in the Baltic States. As a consequent implication of this
accepted restoration of independence, these Baltic states do not constitute
successor states to the USSR, thus implying freedom from such rights and
obligations as would be consequential upon such a kind of succession.[643]
Yugoslavia, however, witnessed a more complex issue as regards
succession. The Socialist Federal Republic of Yugoslavia collapsed over
several months,[644] with the individual constituent units proclaiming
independence at different times.[645] The Arbitration Commission on
Yugoslavia deemed that the process was over by the time its opinion was
issued on 4 July 1992.[646] In the course of its opinion, the Commission
noted that Bosnia and Herzegovina had a referendum that resulted in a
majority in favour of independence. Serbia and Montenegro had established
a new state called the Federal Republic of Yugoslavia, on 27 April, 1992.
Slovenia, Croatia and Bosnia were recognized by the states of the UN and
the EC, and had also been granted membership in the UN.[647] The
Socialist Federal Republic of Yugoslavia, thus, had been declared as
ceased to exist.[648] Despite this turn of events, Serbia and Montenegro
st

th

th

142

each continued to maintain that it constituted no new state, but remained a

continuation of the erstwhile entity. The UN Security Council, in Resolution
777 (1992) held that the state, known as the Socialist Federal Republic of
Yugoslavia had ceased to exist, and that Serbia and Montenegro could not
continue automatically, the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations.[649]
Unification
Another form of State Succession is unification. A merger of two or more
already existing states to create a new state is unification. This has occurred
in cases of the Yemen Arab Republic, and the Peoples Democratic
Republic of Yemen, which merged into one. Both states entered into an
agreement on 22 April, 1990, and established the Republic of Yemen, by
merging two existing states and creating a new state with a new name.[650]
Another mechanism that constitutes unification is when one state absorbs
another, leading to the disappearance of the latter, while the former
continues with a larger territory and population. An example for this is
Germany, which, at the end of the Second World War, was divided into five
parts, four of which were governed by USA, UK, France and Russia, along
with a fifth special Berlin Area, that formed part of the no-zone.[651] The
German Democratic Republic was recognized as a sovereign state having
full authority over internal and external affairs subject to the rights and
responsibilities of the Four Powers in respect of Berlin and Germany as a
whole.[652] A monetary, economic and social union was established by
way of a treaty in May 1990. A second treaty in August 1990, provided for
the unification in October by the accession of the Global Depository
Reserves under Article 23 of the Basic Law of the Federal Republic, on 12
September 1990, the Treaty on the Final Settlement with respect to Germany
was signed by the two German states, and the four Allied Powers.[653] The
last agreement settled matters definitively, and confirmed the borders of
unified Germany as those of the Federal Republic of Germany and the
German Democratic Republic, provided for the reduction in the armed
forces of Germany, and for the withdrawal of Soviet Forces from the
withdrawal of Soviet forces from the territory of the German Democratic
Republic. The four Allies ended their rights and responsibilities concerning
Berlin and Germany as a whole, so that the amalgamated Germany had full
sovereignty over its internal and external affairs. Between the Federal
Republic of Germany and the German Democratic Republic, the treaty dated
31 August, 1990, clearly provided that the latter was assimilated into the
former.
nd

th

st

143

Absorption and Merger

When one state is absorbed by another, or merges into another, the former
entity becomes extinct, and the latter expands territorially. As a consequence
thereof, those treaties that have been signed by the former state, of a
political nature,[654] cease to exist as the concerned state itself ceases to
exist. However, territorial treaties that define boundaries shall continue to
define the boundaries as they did originally. Treaties of the absorbing state
continue to govern the newly acquired territorial expanse. However, all of
these principles can be altered in application with the expression of a
contrary intention by the parties. A case in point is the German Unification
process, whereby Article 11 coupled with Annex I of the Unification treaty,
1990, sought to exclude the erstwhile territory of the German Democratic
Republic, from the treaties of the Federal Republic of Germany in relation
to NATO issues.
As per Article 31(1) of the Vienna Convention on the Succession of States
to Treaties, where two or more states unite to form one successor state, the
treaties continue in force unless the successor state and the other state party
agree otherwise, or, if it appears that it would be incompatible with the
object and purpose of the treaty or would radically change the conditions
for its operation. The second clause of the same provision establishes that
such treaties would apply only in respect of that part of the treaty in respect
of which the treaty itself was originally in force at the date of succession of
states. However, where contrary intentions are declared, to the effect that
the multilateral treaty shall be applicable in relation to its entire territorial
expanse, or, that the treaty itself is such that by its terms or by way of having
limited members requires the consent of other members, the aforementioned
rule is modified.[655] This is the general trend exhibited in the context of
bilateral treaties as well.
It seems clear that these provisions are amply useful in relation to cases
where two states join together to become a new, third state. But what
happens when one state simply takes over another state, leaving the latter
completely extinguished? The general mechanism as followed by
International Law has best been reflected in Article 31 of the Vienna
Convention on the Succession of States to Treaties, even in such situations.
During the Egypt-Syria merger, the United Arab Republic was formed in
1958.[656] Similarly, Tanganyika and Zanzibar merged to form Tanzania in
1964.[657] In both cases, there were provisions to the effect that there
would be a continuation of treaties in the territories to which they had
applied before the mergers. With a general practice in place that also points
144

in the same direction, it stands clear that Article 31 applies in such

circumstances.
Cession
Cession refers to the instance when one part of a states territory becomes a
part of another states territorial expanse. Cession brings along with it, a
plethora of consequences relating to state succession. The general rule is
that treaties of the former cease to apply to the territory while the latters
treaties shall extend to the territory. Article 15 of the Vienna Convention on
the Succession of States to treaties establishes the rule, which is also
famously known as the moving-frontiers rule.[658] It adds a proviso, that
where it appears from the concerned treaty, or, is otherwise established that
the application of the treaty to the territory would be incompatible with the
object and purpose of the treaty would radically change the condition for its
operation, the extension of the treaty should be avoided. Historical
examples amplify this line of thinking. After 1919, it was held that German
treaties would not apply to Alsace-Lorraine, but that French treaties would
apply.[659] Article 15 thus personifies customary law.
Secession from an independent state results in the continuation of the
original state, with reduction in territorial expanse, but with all its
obligations from before intact as regards its territory, except the portion that
has been ceded. The newly created entity begins life afresh, free from all
treaty rights and obligations that bound its former sovereign.[660] This
occurs because it is difficult to preserve as a common rule that states that
have not signed treaties are to be made bound by them.
Succession and Treaties: Rules and
Reality
The underlying norm of every treaty that a state is signatory to is pacta sunt
servanda, which implies that the state must respect all the treaties it has
signed. However, as per the rule of pacta tertis nec nosunct, nec prosunct,
which implies that only those states that are party to a treaty are bound by
that treaty, a treaty does not apply to a third state, or to any state that has not
signed it. When succession occurs, an independent state, a new state
emerges from the original entities that existed. These new entities are
independent of the original entities, or may, in some cases, continue as
extensions of the original entity. The rules pertaining to succession to
treaties are found in customary law, and have also been codified in the
Vienna Convention on the Succession of States in Respect of Treaties, 1978.
As regards treaties, or agreements with the predecessor state, as far as
bilateral issues are concerned, the consent of the other party is required.
145

Articles 8 and 9 of the Convention emphasize this rule. Article 8 says that
such agreements in themselves cannot affect third party states and this
reaffirms an accepted principle. Article 9 deals with unilateral declarations
and emphasizes that such a declaration by a successor state alone cannot by
itself affect the rights and obligations of the state and third states.
For the purpose of state succession, treaties are divided into three kinds.
The first of these are the territorially applicable treaties- which include all
treaties that apply to definitive territorial extent, such as treaties that define
boundaries. These treaties are called dispositive treaties. The general
viewpoint as regards territoriality treaties indicates that they remain
untouched by succession, and continue unaffected, and that succession
always occurs. These treaties are known to run with the land, and are
unaffected completely, by changes in sovereignty over the territorial
expanse.[661] This is primarily so with due respect and regard for the
maintenance of stability. The first internationally accepted expression of this
line of thinking is the Latin American doctrine of uti possidetis juris. This
was subsequently enunciated in the American Practice,[662] laid down in
Resolution 16 of the meeting of Heads of State and Government of the OAU,
1964. The ICJ has also accepted this point of view, as expressed in the
Burkina Faso/Mali case.[663] Uti possidetis has been extended from
decolonization to the creation of new states from existing independent ones,
as state practice depicts. A great deal depends on the situation at hand,
including the stand of other states, and the UN. Article 62(2) of the Vienna
Convention on the Law of Treaties states that a fundamental change in
circumstances cannot be invoked as a ground for terminating of or
withdrawing from a treaty that establishes a boundary. Article 11 of the
same states that succession does not affect a boundary established by a
treaty, and obligations and rights established by a treaty, and relating to a
regime of a boundary. In the Libya/Chad case,[664] the ICJ held that once
agreed, the boundary stands, as any other approach would vitiate the
fundamental principle of the stability of boundaries. A boundary established
by a treaty enjoys permanence, which a treaty itself may not enjoy. In the
Eritrea/Yemen case,[665] boundary and territorial treaties are erga omnes
in character. A commonly encountered consequence of this rule is that states
that emerge newly, inherit those boundaries that are drawn for it by prior
colonial powers. Colonial boundaries, in places such as Africa, were
oftentimes unnatural given that they disregarded ethnic divisions. Areas
forming a natural unit were cut across. However, independent states were
not in one consensus when it came to redrawing boundaries, and wanted to
preserve and protect what they already had, to avoid unwanted hassles.
146

[666] Subsequently, in 1964, the OAU adopted a resolution that encouraged

member states to respect the extant borders on the achievement of
independence.
Allied with this is a set of rules that govern the principle of moving treaty
boundaries. When a state loses a part of its territory, it loses its rights and
obligations under the treaties it is signatory to, in so far as those treaties
used apply to the territory so lost. An example is when the United Kingdom
accorded independence to Nigeria, it was no longer bound by an AngloAmerican extradition treaty to extradite criminals from Nigeria. It did not
have a right, any longer, to require that criminals be extradited from the
United States, for any crimes that were committed in Nigeria. But, as
regards the corollary, when a state acquires new territory, it does not
automatically succeed to the predecessor entitys treaties in respect to the
area. Its own treaties become applicable to the newly included area. A case
in point is the application of the French treaties to Alsace and Lorraine,
after they were ceded to France by Belgium in 1919. These two principles
constitute what is called the rules of moving treaty-boundaries. These rules
find application in cases where existing state territories transfer portions of
their territory to another state, thereby transferring the rights of sovereignty
over them. The gist of the rule lies in the fact that once the territory moves,
the treaties that the successor state is bound by, applies to this newly
acquired territorial expanse. The rule, however, leaves a glaring lacuna.
What happens when one state is completely absorbed by another? This was
a line of argument advanced by Germany at the time of the preliminary
discussions on the 1978 Convention. Of course, it would be easiest said
than done to conclude that the successor states treaties shall alone apply,
and all of the predecessor treaties fade into profanity. The practical realm
would purport to throw up too many issues in this regard, and hence it still
remains a gray area.
The second kind, namely, the Political treaties, deal with the establishment
of rights or obligations which are particularly linked to the regime in power
in the territory in question. These imply treaties of alliance, friendship or
neutrality.[667] These treaties do not bind successor states as they are tied
to the nature of the state that has ceased to be. The emergence of states at the
end of the colonial era witnessed a plethora of political treaties. A new
state can succeed to a multilateral treaty to which the predecessor state was
a party.[668] This is not without exception, given that a new state cannot
succeed to a multilateral treaty if it would be incompatible with the
intentions and ideologies of the extant signatories of the treaty, and, a state
may choose not to succeed to a multilateral treaty, in which case this rule
147

does not apply. A new state succeeds to a bilateral treaty made by the
predecessor state with another state, only if both states involved agree to
this.[669] A perusal of these provisions indicates a higher degree of
importance for consent in the case of bilateral treaties. This arises naturally
out of the fact that multilateral treaties are established for the very sake of
widespread participation and membership. States have the right to enter into
treaties in their capacity as sovereigns. However, it cannot be forgotten that
colonies were often given a partial treaty-making power before becoming
sovereign. This gave them the right to enter into such treaties that did not
suffer from the state emerging independent. The UN Charter is a prime
example. While under British Rule, India joined the UN as early as 1945.
After it attained independence in 1947, it continued as a member of the
United Nations.
The third category deals with other treaties, which are not easy to define or
categorize when it comes to succession. There seems a general
inclination[670] of states in favour of succession to some categories of
multilateral treaties and conventions.[671] However, this is not an
exhibition of a general rule, and thus, each circumstance needs to be
analyzed independently of a generic set of rules. The claims as made by
relevant states, and the related positions and reactions of third states must
be studied. This is the general scheme of things as far as multilateral treaties
are concerned. But, as far as bilateral treaties go, the pivotal point is that of
the individual contractual state, since only two states are involved in a
bilateral treaty. The general presumption is that of non-succession, with due
regard to all the facts and circumstances of the case. The catena of instances
pointing towards state practice reveals that most states rely upon and
support the clean-slate doctrine.[672]
The Nyerere Doctrine
In the course of the span of time between the 1950s and 1960s, many
African colonies achieved independence. The rules of succession did apply
to most, but, in some states, the newly emergent doctrine called the Nyerere
Doctrine of selective succession to treaties applied. Julius Nyerere, the
first President of Tanzania, was the hand behind the evolution of this rule.
He was known to have opined that international agreements dating from the
colonial times should be subject to renegotiations when a State becomes
independent. This was because, the newly independent state should not be
automatically bound by something that the nation was not in a sovereign
position to agree to at that time. Therefore, in a bid to salvage its sovereign
148

identity, a newly independent State can upon the attainment of independence,

review the international treaties that it stands to inherit and decide which of
the agreements it will accept and which it will repudiate. Although such an
approach to State succession is not new and was already recognized by
customary international law, Nyerere is recognized for the modern
formulation of the optional doctrine of the law of State succession. This
doctrine is generally considered as being more refined than that of the
tabula rasa, or the classical doctrine of clean slate. Under the Nyerere
Doctrine, this is only an assumption, as the doctrine does not do away with
the possibility of a renewal of commitments or agreements of mutual interest
to the parties concerned. This doctrine rejects any categorization of
international obligations between those that the successor state ought to
accept and those which it could reconsider.
Human Rights Treaties
Within the realm of State succession, the subject of succession in relation to
human rights treaties is of special interest. Several human rights violations
often occur precisely during the periods of political instability which tend to
stem from state succession. In such circumstances, it is imperative to know
the precise extent of the international obligations which are incumbent on
the successor. This applies not only to the obligations under the international
human rights standards which are in force, but also to the reporting
obligations, the complaints procedures and, more generally, the rules of
accountability.
Human rights treaties are specific treaties, which establish that obligations
are owed directly to individuals and provide for direct access for
individuals to international mechanisms.[673] When a state party to a human
rights treaty either disintegrates, or, is one from which other states are
created, if the basic rules of succession are followed, there is a danger that
this may lead to the deprivation of the protection of human rights for the
people in the territory. In relation to the Yugoslav tragedy, the UN Human
Rights Committee, in its 45 session, was quick to rise to the occasion
where it held that all the people within the territorial expanse of erstwhile
Yugoslavia are entitled to the guarantees of the Covenant.[674]
In 1994, the Commission on Human Rights adopted a resolution, numbered
1994/16, on 25 February, 1994, in which it sought to reiterate its call to
successor states which had not yet done so, to conform to appropriate
depositories that they continue to be bound by obligations under
international human rights treaties. The Commission also requested human
rights bodies to continue furthering the continuing applicability of the
th

th

149

respective international human rights treaties to successor states, while also

requesting the Secretary General to encourage successor states to conform
with their obligations under international human rights treaties to which
their predecessors were a party as from the date of their independence.
[675]
Judicial opinion on the subject tends towards the same notion. In the
Application of the Genocide Convention (Bosnia-Herzegovina v.
Yugoslavia) case,[676] the Court held that it was in effect, not necessary to
go into the question of human rights treaty succession, since both successor
states were parties to the Genocide Convention. Nevertheless, the issue
itself was addressed in two separate opinions. In the words of Justice
Shahabuddeen, to effectuate its object and purpose, the Genocide
Convention would fall to be construed as implying the expression of a
unilateral undertaking by each party to the Convention, to treat successor
states as continuing as from independence any status which the predecessor
state had, as a party to the Convention. The object and purport argument
could be extended to Human Rights Treaties.[677] In Justice Weeramantrys
opinion, it was held that a principle of contemporary international law
exists, that there is an automatic succession to so vital a human rights
convention as the Genocide Convention.[678] This opinion stemmed from
the fact that there was the danger of gaps appearing in the system of human
rights protection, as between the dissolution of the predecessor state and the
acceptance of human rights treaty obligations by the successor state or
states.
International Claims and Succession
International claims refer to any cases or legal disputes seeking
compensation or reparation for illegal acts, which are regarded as being
personal in the international scenario. As a consequence thereof, there is
no succession to the rights of the claimant state or to the obligations of the
state called to make such compensation or reparation. International claims
are unaffected by expansion or contraction of the claimant state or of the
defendant state, since the clean-state rule warrants that new states
commence operations with a clean slate, and that where the claimant state
becomes extinct, the claim also follows suit down that lane. In the Browns
Claim,[679] a US Citizen suffered a denial of justice in South Africa, in
1985. The Boer War broke out before his claim was settled, and led to the
annexation of the Republic by the United Kingdom. In pursuance of his
claim, the United States pressed for justice against the United Kingdom. It
was ultimately concluded by the Arbitrator that the United Kingdom had not
150

succeeded to the South African Republics liabilities for international

claims.
Succession and Nationality
Nationality is the single-most important factor in linking an individual to a
state, particularly in the context of individual identity, and allied rights and
obligations. Nationality has links with the principle of state sovereignty, in
that the state that grants nationality may do so only if it is vested with the
rights accruing from its status as a sovereign. When sovereignty in relation
to a territory changes, the automatic consequence arising therein, is that the
subjects of the predecessor state, continuing to inhabit the territory now
belonging to the successor state, automatically lose their old nationality and
acquire the nationality of the Successor State. This becomes a little complex
in practice. Determination of who these inhabitants are, now takes on a
rather difficult note. The criteria to determine ones status as inhabitants can
be anything under the sun, ranging from birth on territory, to residence on
territory, to a mix of both. Choosing birth as the criteria is easy, there
involves no date calculations. If residence is chosen, the biggest challenge
lies in culling out the relevant periods and time requirements that need to be
satisfied, in order to be construed an inhabitant. At present, the gray area
stretches over a vast expanse. Legislative provisions and treaties can
perhaps be of use in the matter, in assisting the provision of some viable
solution, to say the least.
Having identified the zone as bearing too many lacunae to name, the
International Law Commission in 1993, went on to address the topic of state
succession and its impact on nationality of natural and legal persons. The
working group devoted to the topic concluded and submitted a report in
1995, with its fundamental suggestions built on the fact that every person
whose nationality might be affected by the change in the international status
of the territory has a right to nationality. It also pointed out that states have
the obligation to prevent statelessness, considering that it is the most serious
ramification emanating from state succession, along with issues of dual
nationality, separation of families resulting in different nationalities for
different members, and the warped implications that branch off from them.
Succession and Contractual Rights
The succession of a state to the contractual rights of its predecessor has
been subject to much debate and discussion, far before the era of
decolonization. As early as the West Rand Central Gold Mining Co. v.
The King,[680] it was held that the successor state does not succeed to the
contractual liabilities of the predecessor state after taking the latter in its
151

fold. However, this case has been subject to much criticism, in that the ICJ
rejected the surmise in the German Settlers case.[681] By sheer logic, it
would be right to say that a state cannot be bound by a contract to which it is
not a party. However, if the alien has brought home some benefit to the
territory after outing in money and effort in the course of performing his
contractual obligations, the state acquiring such sovereignty over the
territory should, with all due regard to the law, allow the alien to reap the
rewards accruing from his investment. This makes the successor states
liability seem quasi-contractual. Of course, this classification as contractual
or quasi-contractual only brings in a nomenclature-driven theoretical
dimension, since the consequences are ultimately the same.
Contractual succession comes to fore in the light of concessions and
national debts. Concessions are rights accorded by a state to any person,
legal or natural, to operate an enterprise based on certain terms defined in
an agreement entered into between both. This may relate to any activity
involving the provision of a public utility. The concession grants rights that
are partly contractual, and partly proprietary in nature. The general notion is
that a successor state must pay recompense if it annuls concessions granted
by predecessor states.[682] As for national debts, if there has been a
takeover of a whole state, then the successor takes on all obligations of the
predecessor. If it has only just been a part, then part of the debts shall be
succeeded to.
Succession to Assets
The basic rules underlying succession to assets and debts are couched in
customary international law. These tenets were given personification in the
Vienna Convention on Succession to State Property, Archives and Debts
1983. However, the convention is not in force. A plethora of its provisions,
with the exception of those segments dealing with newly independent states,
reflect the principles of customary law that remain in place till date.
The chief rule in relation to the distribution of assets, archives and debts in
succession-related situations is that the relevant parties should settle the
issues between themselves by way of an agreement. The rules found in the
Vienna Convention of 1983 come into operation only in those circumstances
where an agreement has not been entered into. Jurisprudence on the subject,
as explained by the Yugoslav Arbitration Commission in the course of its
Opinion No. 9, the successor States to the Socialist Federal Republic of
Yugoslavia were to settle all aspects of the succession by agreement
together, in tandem with one another.[683] The approach was subsequently
reinforced in Opinion No. 14, where the Yugoslav Arbitration Commission
152

declared that the first principle applicable to State succession is that the
successor States should consult with each other and agree a settlement of all
questions relating to succession.[684]
Public Property: The term public property implies all the property that
belongs to the state, i.e., all property distinct from those that belong to its
nationals and inhabitants, while the predecessor state retains the public
property on the territory it has not given away.[685] The classic rule
postulates that only the public property of the predecessor state passes
automatically to the successor state,[686] as dependant on the definitive
ambit of the public property in question. Public and private property differ
from each other in terms of definitive ambit, based on the conceptual
differences that exist in private and public law. Recourse to municipal law
is an oft sought after requirement, considering that it is only a few times
when there is a definition of what public property includes.[687] Therefore,
the question now shifts as to which municipal law needs to be referred to.
The law of the predecessor state is the relevant legal regime that needs to be
perused in understanding the ramifications that shall arise in the context of
succession and state public property. This is so, because the law that
defines the property as being public property, shall be the law that shall
determine the direction it shall take as regards attaining its final destination
in the wake of succession.[688] Article 8 of the Vienna Convention 1983,
while codifying customary law, stipulates the meaning of state property,
holding that it implies all property, rights and interests which, at the date of
succession of states, were, according to the municipal law of the
predecessor state, owned by that state.[689]
The Yugoslavian Arbitration Commission reemphasized this point, by
holding that in order to determine whether the property, debts and archives
belonged to the Socialist Federal Republic of Yugoslavia, reference ought
to be made to the domestic law of the Soviet Federal Republic, as was in
operation on the date of succession.[690] For the sake of cogency and
clarity, the date in question for the passing of the property is the date of
succession, unless otherwise agreed by the parties concerned or decided by
an appropriate international body.[691] This is usually the date of
independence. Of course, in theory, this is much simpler. There will be
plenty of difficulties, as different dates of succession exist for different
successor states.[692] Agreement between the concerned parties alone
would help solve these difficulties.[693]
To gain better perspective on the subject, it would be relevant to understand
the background that contributed to the jurisprudence from the Yugoslavian
153

Arbitration Commissions. Primarily, in relation to the specific issue under

discussion, the Commission was confronted by two problems. The first of
these issues was that the 1974 Constitution of the Soviet Federal Republic
of Yemen had transferred the ownership of several items of property to the
constituent republics. The commission, in this regard, concluded that such
property could not be held to have belonged to the Socialist Federal
Republic of Yugoslavia, whatever may be the origin or initial financing.
[694] Secondly, the Commission had to deal with social ownership, a
principle that had received much importance and attention in the Socialist
Federal Republic of Yugoslavia. This issue was dealt with by way of
mixing a functional approach and the territoriality principle. Social
ownership was held mostly by associated labour organizations, each of
whom had their own legal identity and personality, and operated in a single
republic within whose jurisdiction it came. Therefore, the assets, property,
debts and archives were not to be divided amongst the powers on account of
state succession; but rather, instead, each successor state was to exercise
their sovereign powers where they were concerned.[695] However, in all
other cases where other organizations managed social ownership, whether
at the federal stage or in two or more republican entities, their property,
debts and archives were to be divided between the successor states, if at all
they exercised requisite public prerogatives on behalf of the Soviet Federal
Republic, or the individual republics. In the absence of public prerogatives,
the organizations were to be deemed private-sector enterprises, which shall
not face the consequences of state succession.[696] In 2001, the
Yugoslavian Agreement provided under Article 6 of Annex A that the
successor state on whose territory immovables and tangible movables are
situated is the one to decide whether such property was state property or
otherwise.
The generally accepted ideology as echoed by customary law, is that public
property of a predecessor state with respect to the territory involved, passes
to the successor.[697] When a state gains a small portion of new territorial
expanse from another state, it succeeds, in the process, to the public
property of that state situated on the territorial expanse it has acquired.
When a state takes over another state, thereby taking over all of its territory,
it pretty much succeeds to all the public property of the erstwhile state,
irrespective of where it is situated.[698]
At the base of all this assessment, lies the mandatory requirement to
distinguish between private and public property. State owned immovable
property present on the territory to which succession relates, passes to the
successor state, as has been enunciated under Article 14 of the Vienna
154

Convention of 1983.[699] Where the immovable property is situated outside

the ambit of the successor state, or states if applicable, the generally
applicable rule is that where the predecessor state continues to exist, the
property remains with the predecessor, unless otherwise agreed between the
parties, or unless special circumstances prevail.[700] As a necessary
corollary, where the predecessor state itself has ceased to exist, the
property abroad should be divided proportionately between the successor
states.[701]
As regards newly independent states, Article 15(1) (b) exposits the law.
Immovable property having belonged to the territory, to which succession
relates, situated outside it and having become state property of the
predecessor state during the period of dependence, shall pass to the
successor state, while other immovable state property situated outside the
territory shall pass to the successor state in proportion to the contribution of
the dependent territory. It must be remembered that these provisions do not
fall within the ambit of customary international law.
Movable property connected with territory is governed entirely by the
territorial principle.[702] Article 17 of the Vienna Convention of 1983,
stipulates that movable state property of the predecessor state connected
with the activity of the predecessor state in respect of the territory to which
the succession of states applies shall pass to the successor state. This, of
course, is not without implications of high degrees of complication. It is
rather difficult to determine which property is destined specifically for
local use, or, which property is really connected with the activity of the
predecessor state in the concerned territory. The Yugoslavian Arbitration
Commission in the light of movable property went on to assert that public
property passes to the successor state on whose territory it is situated.[703]
This is not to rule out that particular pieces of property can be dealt with
differently. The Yugoslavian Agreement purported that the rule they laid
down would not apply to tangible state property that bears heavy
importance as far as the cultural heritage of the successor states, which
originated there albeit situated at another place at the date of independence.
The property shall naturally go to that successor state where the cultural
heritage itself is.[704] Military property is also dealt with in keeping with
special agreements.[705]
When it comes to movable property housed outside the territory of the state,
more complications come into place. Article 17(1)(c) of the Vienna
Convention of 1983 holds that such property, in the event of there being a
separation of a part of a state, shall pass on to the successor state in an
155

equitable proportion. The approach clearly seems to be a modification of

the territoriality approach.[706] Of course, the equitable division rule gains
a greater stronghold in the case of there being a case of dissolution of the
predecessor territory, and in the case where such property holds a stronger
link with the territory in relation to which succession occurs.[707]
Movable property poses no issues in the context of cases of absorption and
merger, simply because by virtue of one state subsuming the other within its
ambit, there happens to be no doubt that it just takes over the property of the
other. The German unification was a clear exposition of the relevant rules.
The Unification Treaty stipulated under Articles 21 in relation to property
during absorption and merger, that they directly became Federal assets, and
was to be used to discharge all the relevant public tasks of the territory of
the former GDR. Article 22 mentioned that all public assets of legal entities
in that territory, including the land and assets in the agricultural sectors
which did not serve directly specified administrative tasks. The financial
assets were to be administered in trust by the Federal Government and be
apportioned between the Federal Government and the Lander of the GDR.
Succession to Archives
Archives refer to all those properties that bear special characteristics. They
are essentially difficult, by nature, to divide and segregate, while they can
easily be duplicated and reproduced. Archives are essentially those items
that constitute the heritage of a state, the historical realm of a state, and the
identity itself. They may comprise of documents, philatelic and numismatic
collections, photographs, audio and video documents and myriads of other
similar material. The UNESCO has come to the forefront in dealing with
archives, in that it has called for the restitution of archives as part of the
reconstitution and protection of the national cultural heritage and has
appealed for the return of an irreplaceable cultural heritage to all those who
created it.[708] In addition, the United Nations Convention on the Law of
Sea, 1982, is relevant. Article 149 purports that all objects bearing
archaeological and historical value are to be preserved or disposed of in a
manner that benefits mankind as a whole. Article 303 on the other hand,
warrants that states have the duty to protect objects of an archaeological and
historical nature found at sea shall co-operate for this purpose. This has
also been exhibited in practice, as is seen in the context of European States
dealing with cessions of territory including archives.[709]
The Vienna Convention of 1983 also exhibits the law on succession to
archives. Article 20 warrants that all documents of whatever date and kind,
produced or received by the predecessor state in the exercise of its
156

functions, which, at the date of the succession of states, belonged to the

predecessor state according to its internal law and were preserved by it
directly or under its control as archives for whatever purpose. As a general
rule, archives pass as at the date of succession and without compensation.
This occurs without affecting the archives in the territory owned by the third
state.[710] Article 27 states that where a portion of a states territory is
transferred to another state without an agreement, the part of the state
archives of the predecessor state which should be at the disposal of the state
to which the territory is transferred for the purpose of administration of the
territory, shall pass to the successor state. The same provision applies to
newly formed and newly independent states, with a few minor differences.
Archives that belonged to the territory subject to succession, and became
archives of the predecessor state during dependence, passes on to the
successor state. The term archives in this context, implies all forms of precolonial material, in the hands of every entity from the government to
private individuals. Relevant instances of state practice include the Treaty
of Peace of 1947 between Italy and Ethiopia, which dictated that Italy was
under an obligation to restore all archives and objects of historical value
that belonged to Ethiopia or its natives, and were removed from Ethiopia to
Italy since October 1935.[711] Vietnam was another example, where the
1950 agreement between France and Vietnam warranted that there should be
a return of all historical archives.[712]
Article 28(2) provides that the passing or the reduction of parts of the state
archives of the predecessor state of interest to the territory in question is to
be determined by agreement in such a manner that each of the states can
benefit as widely and equitably as possible from the parts of such archives.
Clause 3 of the same article purports that the predecessor state has to
provide the newly emerging state with the best available evidence from its
state archives relating to territorial title and boundary issues.
Where two states unite to form a third successor state, the archives of the
former two states pass on to the successor state.[713] Where a portion of a
state is ceded to another, or is ceded to form another state, unless otherwise
agreed between the states, the part of the state archives of the predecessor
as required to remain with the territory concerned for the purpose of normal
administration of the same, will pass on to the successor, as per Article 30.
These provisions apply in the case of dissolution of states, resulting in its
replacement with other successor states. In the absence of agreements, state
archives pass on to the successor states in an equitable manner with due
regard being accorded to all circumstances, as according to Article 30. The
Yugoslavian Agreement of 2001 confirmed these principles.[714] The
157

agreement went on to add that all other archives that fall outside these
categories are to be governed by an agreement between the successor states.
[715]
Articles 28, 30 and 31, each state that there shall be no infringement of the
rights of the people of those states to development, to information about
their history and to their cultural heritage. This ultimately signifies the fact
that there shall be absolutely no room for the violation of human rights.
Though these rights may not really exist in the legal realm in black and
white, and may just be read into the right to life, it is right to accept that the
general trend leans towards the fact that there should be encouragement
towards allowing the enjoyment of these rights.
Succession and Public Debt
Public debt, sometimes also called as national debt is that debt indulged in,
by the Central Government in keeping with the interests of the State.
Essentially, public debt is a rather sensitive issue, considering the fact that
there are third parties involved, who take the form of creditors, and they
would naturally be reluctant to accept a change in the identity of the debtor,
and a cloud of uncertainty hanging over the likelihood of repayment would
worry them.
Article 36 of the Vienna Convention of 1983 deals with the issue, by
indicating that a succession of states does not as such affect the rights and
obligations of creditors, and therefore, the state is still liable for the debts
irrespective of what nature it takes post succession. Article 40 states that
where part of a state separates to from another state, unless otherwise
agreed, the state debt of the predecessor state passes to the successor state
in an equitable proportion taking into account in particular the property,
rights and interests which pass to the successor state in relation to that debt.
This proposition cannot totally be said to constitute a codification of
customary law, per se, since the view of the confused and disparate practice
of States to date seeks to differ. Nevertheless, the contents of these
provisions do dictate a rather appreciable, pragmatic and feasible
approach.
As a corollary, therefore, it naturally follows that the successor state has a
right to take up fiscal claims belonging to the former state, including the
right to collect the taxes that fall due. In practice municipal courts will
enforce obligations of the predecessor state against the successor only when
the successor state has taken steps to recognize them. Article 38 explains a
circumstance where a new state comes into place. It states that when the
successor state is a newly independent state, then it is a case where no
158

state debt shall pass, except by agreement and the fulfillment of certain other
conditions.
In order to understand the dynamics of state succession and their impact on
public debts, it is necessary to understand what actually constitutes public
debts in their entirety. Public debts comprise national debts, which are debts
owned by the State to an external or internal creditor; local debts, which
refer to debts contracted by a sub-governmental territorial unit or other form
of local authority, and finally localized debts, which imply those debts that
are incurred by the Central Government for the purpose of local projects or
areas.
Succession works differently in relation to each of these debts. As regards
local debts, it is clear that they pass on to the successor state under
customary International Law. This occurs especially since they constitute all
those arrangements that are entered into by sub-governmental territorial
authorities, which are now transferred to the jurisdiction of the successor
state and a succession does not directly affect them. They continue to
constitute debts borne by the specific territory in question.[716] Similarly,
succession requires that localized debts also pass on to the successor state.
This arises on account of the fact that they are closely attached to the
territory to which the succession relates, and pass to the successor state in
conformity in accordance with the territoriality principle.[717]
Having said this, it seems clear that there are defined rules for the
succession of states and their impact on local and localized debts. However,
this is not the same in the context of national debts. There is a bifurcation in
the degree of complication involved. In the case of an absorption or merger,
the state absorbing the erstwhile territory shall take over the debt of the
erstwhile state.[718] Useful reference in this regard may be had to the
Unification Treaty in the context of the unification of Germany, where
Article 23 spoke of the fact that the total national budget of the German
Democratic Republic was to be assumed by a special Federal fund as
administered by the Federal Minister of Finance.
When it comes to secession or the separation of a territorial portion from
one state, where the predecessor state continues in existence, the
predecessor state retains the public debt.[719] There is no yardstick created
by uniform state practice, for the simple reason that there is no uniform state
practice. However, while on the one hand prudence warrants that new states
wouldnt want to be embroiled in a debt at the very outset itself, and
therefore, the predecessor retains the debt; on the other hand, it seems that
some states may be eager to display their creditworthiness, which in turn
159

would encourage them to involve themselves in debt allocation agreements.

[720] In the context of newly independent states, article 38 states that no
debts of the predecessor shall pass on to the newly independent successor,
in the absence of an agreement providing otherwise, in view of the link
between the state debt of the predecessor connected with its activity in the
territory to which the succession relates, and the property, rights and
interests which pass on to the newly independent state.
State practice indicates approaches based on these ground rules. India and
Pakistan, at the point of their partition, agreed such that India would bear the
brunt of all its debts and liabilities as a sole debtor, while Pakistans share
of these debts, in accordance with the proportionality of its share in the
assets of British India, became a debt to India.[721] The 1921 secession of
the Irish Free State from the United Kingdom stipulated that the United
Kingdoms public debt would be apportioned in a fair and equitable
manner, with due regard to all cases of set-offs and counter-claims. As far
as secured debts are concerned, all debts secured by mortgage of assets
located in the territory in question pass along with the proportionate portion
of the debt of the predecessor, to the successor. Nevertheless, where debts
have been charged to local revenue, the presumption favours the opposite.
Article 40 of the Vienna Convention, 1983, states that where a part of a state
separates to form another state, unless otherwise agreed, the state debt of the
predecessor passes to the successor state in an equitable proportion, with
due regard given to the property, rights and interests that pass on to the
successor state in relation to the debt in question.
Where the predecessor ceases to exist, altogether, there needs to be an
apportionment of all the debts of the predecessor, among the successors.
Article 41 of the Vienna Convention of 1983 directs an equitable division,
of course, with due regard to the property, rights and interests which pass to
the successor states in relation to that debt. This provision reflects generally
accepted international practice.[722]
Succession and Membership in International
Organizations
Succession to the membership of international organizations will depend on
whether a new state is formed or whether an old state continues in a
different manner. When a state is carved out of an existent state, there arises
a question as regards to whether it succeeds to the membership in
international organizations of which the former sovereign was a member.
This, however, does not arise at all in the context of cases where territory
160

has been ceded to another existing state. As evidenced by past practice,

where the predecessor state disintegrates into new states, the new entities
have to apply to secure membership in international organizations.
Territories that are ceded from one state and join another take on the new
sovereigns status as far as membership in international organizations are
concerned. When a state disintegrates, such that one portion continues as the
successor of the former sovereign, the continuing entity takes on the position
of the former state in respect to membership in international organizations.
In the context of India and Pakistan, in 1947, India was designated as the
continuing sovereign from the erstwhile entity that India was, and therefore
remained a member of the UN. However, Pakistan was a newly formed
state, and in turn, had to apply to become a member of the UN. Another
example is Syria and Egypt, which merged as one in 1958. Upon merger, the
United Arab Republic came to be, and secured membership in the UN. In
1961, this merger broke up, as a consequence of which Syria continued as a
member of the UN, in separate capacity. With the merger of North and South
Yemen, the merged unit took on the membership of the separate predecessor
units, and continued as a member of the UN. In keeping with such state
practice, the UN General Assemblys Sixth Legal Committee laid down a
few principles.[723] The quintessence of these principles include the fact
that as a general rule, it is in conformity with law to presume that a state
which is a member of the UN does not cease to be a member because its
Constitution or its frontier has been subject to changes. It purports that the
extinction of a state as a legal personality must be shown before its rights
and obligations can be considered to have ceased. Further, it stipulates that
when a new state is created, whatever may be the territory and population it
may possess, it cannot claim to be a member of the UN unless it has been
admitted formally in keeping with the demands of the Charter. The
principles also leave room for sui generis cases, by encouraging the
analysis of factual merits on a case by case basis.
Succession and Private Rights
Private rights pose a rather pertinent question to international law in
relation to succession. The prime issue is as to how far the succession of
states will affect private rights. Sovereignty is a rather important factor,
along with the extent of respect accorded to acquired and subsisting rights
are of relevance. The inhabitants of the territory that is taken into the
successor state from the predecessor state take on the nationality of the
successor. Thus, the subject matter of discussion narrows down to a
question as regards what rights an alien has under international law in the
context of state succession. In order to understand state succession and its
161

impact on private rights, this segment shall be divided into parts for
coherence.
Nationality: State succession brings in a plethora of questions as regards
the issue of nationality. This is, of course, invariably tied with the question
of human rights. The legal position hinges upon the contents of the municipal
laws of the predecessor and the successor. The law of the predecessor is
useful in determining the degree to which the inmates of a territory to be
yielded to the other state will retain their nationality after the change in
sovereignty. The law of the successor is instrumental in determining the
conditions under which such new nationality is to be granted. While it is
generally accepted that nationality changes with sovereignty, it is essential
for the successor state to declare all the rules relevant to the people born on
the territory, or resident on such territory, or born abroad of parents with the
nationality as accorded under the erstwhile regime. In a manner akin to this,
the ceding predecessor may choose to provide its erstwhile citizens in the
territory so ceded, a choice to retain their original nationality. This paves
the way for the creation of dual nationality. A middle path accounts for the
grant of a choice to the newly induced inmates, to decide which nationality
they wish to keep- either the old, or to discard the old one and take up a new
one.
While actual practice may deviate from the rule book in that factual
circumstances pose different challenges, at all times, it is completely
essential that there should be regard for the rights of the individuals. The
1961 Convention on the Reduction of Statelessness encourages the fact that
no person should be left stateless in the event of a change in sovereignty.
This has also been emphasized upon by the Yugoslavian Arbitration
Commission, where it sought references to both the International Covenants
on Human Rights of 1966.[724] In a bid to pursue the same trend, the
European Convention on Nationality of 1997 was also put in place. All of
these evidenced scattered instances of state practice. The culmination of all
individual instances of state practice resulted in the 1999 ILCs Draft
Articles on Nationality of Natural Persons in Relation to a Succession of
States.[725] Article 1 of these articles emphatically reaffirms the right to
nationality, and goes on to provide that individuals, who have the nationality
of the predecessor as of the date of succession, have the right to take up the
nationality of either state. The intention, here, is clearly to avoid a gap
between the date of succession and the date of any agreement or legislation
that confers nationality.[726] The underlying mandate is that the states have
to take all the requisite measures to see to it that there shall be no case of
statelessness whatsoever. These provisions essentially seek to avert all that
162

transpired in regard to the successor states of Yugoslavia and

Czechoslovakia, since the test of nationality of the successor essentially
hinged upon the possession of citizenship of the former constituent republics
instead of upon habitual residence. This led to the deprivation of nationality
of myriads of people.
The second portion of the draft articles explains specific succession
situations, and the implications they have upon nationality. In the event of
transfer of territory from one state to another, Article 20 states that the
successor shall attribute nationality to the persons who have had habitual
residence in the transferred territory, and, that the predecessor shall
withdraw its nationality from such persons, unless otherwise indicated by
exercise of right by these persons. Article 21 goes on to hold that where two
or more states unite to form one successor state, the successor state shall
attribute its nationality to all persons who, on the date of succession held the
nationality of the predecessor. In event of dissolution and separation of parts
of territory from one state, the same rules apply, as explained by Articles 22
and 24 respectively.
Private Rights: Having understood the way nationality is impacted by
succession, it is now necessary to understand the pivotal point, as regards
aliens and their rights under international law in the wake of succession. It
is in this context, that the principle of acquired rights has come into play, in
relation to the rights of foreigners, including a wide variety of legal
interests.[727] The doctrine contends that such rights shall continue after the
succession, and can be enforced by the foreign nationals against the new
sovereign. Jurisprudence has explored the expanse of the doctrine. In the
German Settlers case,[728] Poland had attempted to evict German settles
from its lands. The chief contention was that since many of them had not
taken a transfer of title before the Armistice, they were capable of being
legitimately ejected. The German system encouraged the acquisition of title
by way of leases, or by way of an arrangement whereby they paid prices at
regular intervals, and with the final installment, the land would be theirs
entirely. The Court held that German law would apply until the final
transfer, and all titles so acquired would be governed by the Minorities
Treaty of 1919. The view was modified in the West Rand Gold Mining
Company case,[729] whereby it was stated that upon annexation, the new
sovereign is free to choose which contractual rights and duties of the
erstwhile sovereign it seeks to respect.
The next thing one must note is that the expropriation of property of aliens
may take place, in tandem with the fulfillment of certain conditions. The
163

doctrine of acquired rights merely establishes that there is a presumption of

the continuance of the acquired rights. Only those rights that have been
acquired are covered by the doctrine. Therefore, rights that are to come in
the future, do not bind the new sovereign.
Private Property: Private property rights do not bear the brunt of automatic
lapse when there is a transfer of territory from one state to another. The
manner in which they are dealt with hinges largely upon the aspirations of
the successor state. If it so wishes to expropriate any private property in the
territory it has acquired, the nationality of the owner of such property
determines the extent of the successor states power to do so. Therefore, if
the owner of property acquires the nationality of the successors state, then
the successor state gains an untrammeled right to expropriate his property. If
the owner retains the nationality as he had, from the predecessor state, then
the successor state has an obligation to comply with the mandatory yardstick
of minimum national standard of treatment of aliens, which dictates that
expropriation if made, must only be for public purposes along with a
suitable award of compensation.
Succession to Responsibility
When a state under international law, has committed an internationally
wrongful act towards another state, such other state has the right to seek
reparation. However, if, before such state moves towards demanding
reparation, it disintegrates into a couple of successor states, or, if, before
reparation is sought, there happens to be a secession of portions of its
territory while it continues as an independent state, there lies an obstacle in
the path of the injured state in seeking reparation.
Both instances involve state succession. The dissolution of Czechoslovakia
and the Socialist Federal Republic of Yugoslavia are classic examples of
the former, while the best example of the latter is the Soviet Union, which
continued its existence as the Russian Federation, along a number of new
successor states. A lot of importance and attention has been given to the
topic of the effects of state succession on treaties, both by states and by
scholars, but far lesser to the succession of states to the responsibility of the
predecessor. Of course, the traditional customary rule on succession to
treaties has generally been the possession of a clean slate by the successor,
in respect of the treaties of its predecessor.
In 1992, the Socialist Federal Republic of Yugoslavia (SFRY) disintegrated
into five successor states, namely, the Federal Republic of Yugoslavia,
Croatia, Macedonia, Bosnia and Slovenia. Until 2000, the Federal Republic
of Yugoslavia (FRY) claimed that it was not a successor, but a continuation
164

of the SFRY. That claim was generally rejected by the international

community, with most states considering the FRY to be just another
successor state of the SFRY. After the collapse of the Milosevic regime, the
FRY renounced its claim to continuity. In 2003, the FRY changed its federal
structure and its name into Serbia and Montenegro. In 2006, Montenegro
became independent with the consent of Serbia and the central authorities.
In 2008, Kosovo attempted to unilaterally secede from Serbia, the legality
of this secession of course still being hotly disputed.
Clearly, thus, there were two cycles of state succession in the former
Yugoslavia. In the interim, Bosnia accused the FRY to have committed
genocide in Bosnia during the 1992-1995 Bosnian conflict, and filed an
application with the ICJ. Croatia followed suit similarly against Serbia in
1999. Most arguments in both of these cases revolved around the question of
state succession to the Genocide Convention itself. Both Bosnia and Croatia
contended that the FRY had become a party to the Convention through
succession. In The Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro),[730] the Court found that its 1996 jurisdiction
judgment was res judicata and that it could not be reopened. In its 2008
jurisdiction judgment in the Croatian Genocide case, in which it could not
rely on a res judicata argument, the Court found that the FRYs claim of
continuation amounted to a notification of succession, and that the FRY was
a party to the Convention on that basis.
Coming to the responsibility aspect, the ICJ found that Serbia was not
responsible for the sole instance of genocide during the Bosnian conflict,
titled the Srebrenica massacre. Since Serbia was the continuation of the
FRY/Serbia and Montenegro, its responsibility, and its obligation to
provide reparation for the genocide would have been undiminished. The
Court went on to hold, that whatever Montenegros responsibility as a
successor state might be for any genocide as a substantive matter,
Montenegro had not given its consent to the pending ICJ litigation.
Therefore, though Montenegro may or may not have succeeded to the FRYSerbia and Montenegros responsibility, it had not succeeded to the
litigation. The Court thus lacked jurisdiction in respect of Montenegro, but
had jurisdiction in relation to Serbia, the FRY-Serbia and Montenegros
continuation.[731]
Albeit less state practice has crystallized on the topic, it would be clear to
any prudent thinker that the customary rule of a clean slate in relation to
state succession to treaties cannot apply by analogy to state succession to
165

international responsibility. The doctrine has encouraged voluntary exercise

of choice, as to whether or not to enter into a treaty, and naturally, there
cannot be a grant of choice to the state in relation to its own due
responsibilities, and naturally, therefore, state succession to responsibility
cannot operate under the same paradigm, as a wrongful act has already been
committed. The injured states entitlement to reparation cannot be
eliminated simply because the responsible state has undergone territorial
transformations.

Chapter 8- Territory
The state is, has, and will remain one of the most important and major
subjects of international law. It cannot exist, without the contributing factors
of a territory, a population, a government, and sovereignty. Sovereignty is
essential to the identity of a state, as it implies supremacy in dealing with its
own internal and external affairs, and implies supremacy of the
governmental institutions internally and the supremacy of the state as a legal
person externally.[732] A populace is essential, for without the intervention
of a human hand, the implementation of a law is futile. A government is of
course necessary, given the fact that a people need to be ruled and subjected
to some form of authority. Of course, all of these fall totally without
territory. Without territory, a legal person cannot be a state.[733] As it
stands clearly defined, sovereignty and jurisdiction are all concepts
couched in the principles of territory. As a consequence, thereof, it is vital
to understand the importance of territory in International Law. Classical
International Law hinges upon the axiomatic perception that a state is
deemed to exercise exclusive power over its territory. Since international
law originally grew on the foundations of the state being the sole subject for
a considerable amount of time, it can logically be concluded that territory is
a fundamental concept in international law.
This exalted position accorded to territory and the allied laws is evident
from the large number of legal rules protecting its inviolability. The rule
warranting the respect for territorial integrity takes roots in the norm of nonintervention, as is encapsulated under Articles 2(4) and 2(7) of the UN
Charter. However, this exclusivity has been waning off late, with the
steadfast persistence of human rights law and issues such as selfdetermination, all of which are transnational in nature.[734] International
organizations have also mushroomed over the past century, a trend coupled
with the evolution of the concept of common heritage in relation to the law
of sea and air, have also augmented the reduction of the exalted position
166

accorded to the territorial exclusivity of a state.[735] While there have been

instances of dents on the exclusivity, it is still pertinent to note that the
territorial sovereignty accorded to a state remains a fundamental and
important concept in international law.
International law is not like most other legal sub-sects, in that most of its
precepts personify and mirror political conditions and evolves in tandem
with reality. This has led to the emergence of a plethora of rules governing
the transfer and control of territory. Oftentimes, these rules have
successfully borne effects of legitimizing the consequences emanating from
an exercise of power. The anarchical set up that international law revolves
around has augmented the way in which a law must come to terms with the
wielding of power, authority and force.
There is a tangential difference in the way municipal law and international
law deals with territory. Municipal law is rather crafted, intricate and neatly
detailed. This obviously stems from the fact that for a state, land is an
important resource and a contributing factor to the process of wealthcreation and addition to the economy. Land law within the municipal realm
functions to establish an acceptable balance of power within a society.
Plenty of legal rights and obligations exist over land, and this stems from the
division of land into different segments.[736] However, international law
does not treat territory in a manner of such sophistry and quality, primarily
because it is exclusively a state resource, and there is only so much that
international law can intervene. Secondly, the lateral system of territorial
sovereignty in international law that places states on an equal footing is
different of the vertically aligned order of land law under municipal law.
This leads to another dimension. The understanding of territory in
international law and domestic law is the difference in the ramifications
each brings in its stride as a result of a change in ownership under each
realm.
When there is a change in ownership, or in clearer terms, in the sovereignty
handling the state, there are consequences of a larger scale involved. The
nationality of the inhabitants changes, the laws applicable change, and the
obligations owed under the law would take a different route. Under
municipal law, however, this is not the case. The ramifications are far less
far-reaching as opposed to those under international law. International law
is obligated to deal with the effects of a change in sovereignty, and not just
the mere process of transfer, acquisition or loss of territory.[737]
One factor that has been instrumental in marking the difference between the
treatment of territory under both legal regimes, is the fact that in
167

international law, territory is most often relative, as opposed to municipal

law where it is absolute.[738]
Understanding Territorial Sovereignty
Territorial sovereignty is an integral part of Statehood. Devoid of
sovereignty, a state cannot be called as sovereign. Under this domain, a
State is free to exercise exclusive jurisdiction over persons and objects.
Other States have no right to interfere in the internal or external affairs of
another state on any account. In the words of Judge Huber in the Island of
Palmas Arbitration case,[739]
Sovereignty in relation to a portion of the surface of the globe is the legal
condition necessary for the inclusion of such portion in the territory of
any particular state.
Territorial sovereignty, thus, has come to mean the existence of a series of
rights exercised over territory, more than just independence of the state
itself. It holds in its cache, a plethora of the fullest rights over the territory
known to the law, and a couple of minor territorial rights such as leases
and servitudes.[740] Territorial sovereignty bears both, positive and
negative connotations, the former being the exclusivity of the states
competence in dealing with its own territory,[741] and the latter being the
obligations to protect the rights of other states.[742]
In tracing the historical roots of the legal provisions on territorial
sovereignty, one finds that it all dates back to the Roman Legal system. The
rules pertaining to ownership and possession, and the rules governing the
classification of different methods of acquiring territory comes directly from
the Roman Laws of property.[743] However, this is not without any
modifications of sorts. Territorial sovereignty encapsulates all the factual
and legal conditions that lead to the territory being deemed as belonging to a
specific authority. The term title implies both, any evidence which may
establish the existence of a right and the actual source of that right, as was
held in the Burkina Faso/Mali case.[744]
At this juncture, it is prudent to understand the differences between the
treatment of territory in municipal law and in international law. International
law looks to treat the ownership and title to territory in relative terms, as
opposed to municipal law which accords a more absolute treatment.[745]
As a corollary, therefore, it is necessary to note that a court, or a tribunal in
dealing with a claim between two states in respect of a portion of territory,
will have to consider all the relevant arguments, and will award the land to
the state that relatively makes out the best case.[746] What makes the title
absolute in municipal law, is that the questions that are dealt with in the
168

context of territorial sovereignty essentially deal with ownership and

possession. There needs to be an examination of facts, evidence and the
relevant submissions to see whose claim is better of the two claimants. Not
many of these claims have much to do with territorial sovereignty. Personal
ties of allegiance may exist, but these may not necessarily lead to finding of
sovereignty.[747] The specific attributes of the territory need to be studied,
as along with the specific structure of the sovereignty involved.[748]
Territorial disputes take on a different colour in the context of international
law. They can be segregated into different categories for understanding and
clarity. Primarily, there are disputes that arise over the status of the
concerned state itself, as to the status of all the territory in question
comprised in a specific state. This was seen in the context of the ArabIsrael exchange at one point, and between Morocco and Mauritania. Another
kind of territory related disputes may relate to a specific area on the borders
of two or more states. This occurred in relation to the Somali claims against
Kenya and Ethiopia. The basis of these claims may vary. Claims may be
based on grounds such as the traditional modes of occupation or
prescription, or issues of self-determination and the related ramifications,
along with a few political issues such as geographical contiguity,
historically connected demands, and other economic elements that may bear
relevance to the outcome.
Territory, under International law is not confined to that which belongs to
the sovereign realm of a states control. It includes two other kinds of
territory, namely, terra nullius and res communis. The former refers to all
such territories that belong to no sovereign, and therefore, are not subject to
sovereignty. Res communis can be said to be of the same genre, in that there
is no possibility of reducing such land into the confines of sovereign
control, implying therefore, a case of non-mans land, but every mans land.
The classic examples of these are the high seas and outer space. Neither are
capable of being watered down into compartments bearing sovereign
control, but are open for usage by all and sundry.
Some Basic Concepts
In relation to territory and territorial acquisition, there are a few basic
concepts one must understand before looking at the dynamics of the rules
relating to acquisition. Some of these rules are:
The Doctrine of Inter-temporal Law
Many a time, disputes relate to territorial title that derive from acts bearing
legal significance, such as, perhaps, a treaty concluded sometime back. The
rule applicable in such cases generally is that the situation must be
169

appraised, and the treaty involved must be interpreted in the light of the
rules of international law as they existed at that time, and not in the light of
the rules of international law as they exist in the present day, or, at the time
of the dispute if it differs from the date of such act bearing legal
significance. In the Island of Palmas case,[749]
Acquiring Territory: The Position of Newly
independent states
Acquisition of territory under international law involves answers that
invoke a politico-legal study. There are a plethora of other concerns, such
as ones pertaining to recognition. However, the emergence of new states has
always been instrumental in the creation of quite a few issues, since, under
international law, when a new state is created, it does not really have much
competence in its stride to actually hold title to territory. Practice since the
end of the Second World War, and the emergence of decolonization is
indicative of the fact that traditional rules of territorial acquisition do not
really settle the difficulties that arise. Subsequent practice in the course of
development since the emergence of such issues indicates the fact that they
have been dealt with by way of the theories of recognition, rather than in
terms of discussing the ramifications in the light of the modes of territorial
acquisition. This has left frugal room for the sake of discussions of the
modes of territorial acquisition. Instead, emphasis has been laid on the
compliance with factual requirements in pertinence to statehood coupled
with the acceptance by other states.[750] Therefore, when a state is
accorded recognition, it automatically implies a case of acceptance of the
territory as being part of such state, irrespective of the mode of acquisition
that has been pursued.[751]
One of the most significant issues to be taken into account is the fact that the
doctrine of domestic jurisdiction plays an important role. The doctrine
signifies that there is a prohibition on the intervention off one state into the
internal workings of another state, since each state is supreme within the
domestic parameters of its territorial expanse. This rule stems from the
importance that is attached to the stellar values of sovereignty and the
equality of states in the international realm. As a consequence, thus, the
factual matrix comprising each individual case plays a significant role in
leading up to the emergence of a state. With more emphasis on facts and less
upon the legal scrutiny, there has been some sort of stultification in the
search for precise methods by which new entities obtain title to territories.
[752] However, the rule has seen some modification in the prevalent
practical realm. International organizations and exchange between states
170

have indicated active involvement in the conditions in non-independent

countries, and the general trend depicts acceptance of the fact that territorial
sovereignty does not stretch to include mandated and trust territories within
its conceptual ambit.[753] As a result of this, there has been a
reconsideration of the rules pertaining to territorial acquisition. Though the
trend is indeed changing, it would be useful to note that municipal law has a
hand in the process of gaining independence.
A state may gain independence either by way of constitutional mechanisms,
where an agreement with the erstwhile controlling authority is sufficient to
create devolution of power, or, in the alternative, by non-constitutional
means where there may be an element of force involved, directed against the
will of the former sovereign. The former allows the grant of independence
by way of either an agreement, or, by way of a domestic legislation
exclusive to the internal realm of the state. This mechanism witnessed
practical manifestation in the case of Burmas quest for independence,
where it entered into an agreement and a treaty with the United Kingdom.
Such cases evince the devolution of sovereignty from one power to the
other, leading to the natural passage of title alongside, since all the
procedures followed fulfill the requirements of the law. However, when a
state gains independence of its own accord, against the wishes of its
previous sovereign, then the question as to how territory is treated arises.
Such independence is usually pursued by way of secession or revolution.
Sometimes, self-determination also goes into creating a new state. Usually
in circumstances like this, other states in the international realm accord
recognition to the newly independent entity, culminating in the ultimate
recognition by the predecessor sovereign itself, that such entity is a state. As
a consequence thereof, there may be an agreement between both states.[754]
When a state comes into existence, having attained sovereignty, there is in
place, a new set of facts. All the criteria required may be fulfilled; the state
may have its own share of commitments to the international community by
way of succession, but inevitably, it is up for recognition by other states in
the international community. States in the international realm have to make a
choice in relation to whether or not they shall recognize such new state. The
essentials required to be fulfilled by states in international law, is as
enunciated earlier, the requirement of territory, sovereignty, population and
a government. When an entity emerges on the international scenario in need
of recognition, one cannot bring in issues of title to territory, since there
cannot be a claim to such title until such time that a legal person exists to
seek such title. Therefore, it is necessary to establish that identity of a legal
person before venturing into the question of territorial acquisition. There
171

have been contentious ideas sallied back and forth in this regard. The most
famous of these is the acceptance of the factual parameters that make the
state, and therefore, accepting reality without prying far too deep. This
would result in the acceptance of the entitys identity as a state, and
therefore it shall be deemed that the possession of such territory shall be
accepted as indicating ownership over the territory since independence of
such state.[755] This rule proves adequate in the inter-state realm in
relation to the territory within the possessive ambit of the state. However,
one cannot ignore the fact that this rule may throw up too many questions as
regards territory outside the possession of the state. This approach has also
been questioned on account of falling short of explaining the actual meaning
of territorial sovereignty as far as international law is concerned. Another
suggested line of thinking is the constitutive theory of recognition, which
purports that once an entity is recognized by the international community
such recognition makes it a state, thereby indirectly, conclusively
determining and declaring that it has legal title to the territory involved.
[756] This theory finds lesser acceptance, considering that the constitutive
theory itself has not been accepted by most states in the international arena.
In the wake of there being so many controversies surrounding each theory
that could possibly govern the issue, it would be prudent to look for a
solution involving a deviance from the generally accepted scheme of things.
Instead of placing a restrictive predisposition to demand that only a legal
person can hold titular rights in respect of territory, it would be wise to
afford an opportunity to states-in-the-making, at the stage when they bear the
status of entities devoid of statehood, to hold territory even while it is in the
interim period before it is recognized as being a state. Doing this would
ease out a lot of other complications that may arise from the debatable realm
of recognition. The rule that an entity in stages before its recognition as a
state has a separate status different from the erstwhile administering power
which exists until its people have exercised their right of self-determination,
has been emphasized under the 1970 Friendly Relations Declaration.[757]
In any case, all of these provisions remain tentative at best, considering the
dynamism exhibited by international relations.
Acquiring Territory: Means and
Methods
Coming to the modes of acquisition of territory, one finds there are
mechanisms aplenty available. The traditional perception is indicative of
several distinct modes in which one may acquire sovereignty over a
172

territory. The classification of these modes comes from Roman Law and its
cache of rules in relation to the acquisition of property. This has come to be
on account of the similarity between the exercise of ownership and
sovereignty, a practice that manifested itself in the form of according
ownership to the monarch, in the early eras, of the lands in the kingdom.
However, this point of view cannot be accepted in totality. The
juxtaposition of municipal law and the modality of dealing with territory,
with that of international law essentially permits the presupposition that
transfers of territory occur between already existent states, as it does
between already existent individuals within the municipal domain.
However, state practice in the international realm shows that there are
fewer cases of territory transfer between already existent states, considering
the fact that all states are well-settled in their sovereign status. There has
been, instead, transfer of territory by way of new states emerging upon
gaining independence,[758] since such states actually do attain statehood
only upon the fulfillment of all criteria of statehood, of which the most
relevant to the discussion at hand, is that of territory.
The generally accepted modes of territorial acquisition include the
occupation of terra nullius, prescription, cession, accretion and subjugation
or conquest. In addition, there are mechanisms aplenty. Each of these
methods can be original, or derivative in nature, depending upon how they
chanced upon such territory, and the position of such territory at the time of
such acquisition. An original acquisition occurs in all cases where there
was no transfer from a previous sovereign, while derivate acquisition refers
to the opposite.
Accretion, Erosion and Avulsion of Territory
Accretion, erosion and avulsion are mechanisms that describe processes
which result in the increase of territory by way of new formations on
account of some natural occurrences. Deposits on a sea-coast, the creation
of land out of volcanic activity, or the alteration of a landmass as a
consequence of a shift in tectonic plates could cause an extension of
sovereignty. In such cases, there arent really any reasons to ask for a formal
act evidencing appropriation of territory, since such territory comes up as
part of the original territorial expanse as a matter of natural intervention.
Accretion refers to the gradual and imperceptible addition of substance to
existing landmass. It remains a valid mode of territorial acquisition only in
so far as the process gives rise to an extension to all those areas already
subject to effective occupation, which as a rule, flows from contiguity and
certainty.[759]Accretion has not been accorded a specific status, as a
173

doctrine of appurtenance, or as one involving effective occupation, but the

trend is such that one may rebut the presumption of territorial sovereignty
over land added by accretion, in the event of sufficient evidence to prove
renunciation. Accretion is generally assumed to be a separate mode of
territorial acquisition in its own right. However, there must be a certain
measure of caution in understanding the concept and applying it as such. In a
case between the United States and Mexico, pertaining to the southern
boundary of New Mexico, the solution of disputes between the United States
and Mexico were dependant on principles of acquiescence and the
interpretation of agreements dealing with the consequence of natural
changes.[760] Accretion poses no legal dispute when there is an emergence
of a territorial portion within the extant territory of a state. This occurred in
the context of Japan, when an island emerged in the Pacific ocean, with an
under-sea volcanos eruption in 1986. The UK government went on to assert
that since the island had emerged within the territorial sea of the Japanese
island called Iwo Jima, it was deemed Japanese.[761]
Avulsion refers to the event where a river tears away from its original
course, and creates a new one altogether. In the event of an absence of an
agreement between the states, sudden, unforeseen alterations in the river
courses on account of avulsion will not modify the already established
frontier line.[762] Avulsion may be a gradual occurrence, or may even be a
sudden, violent shift. Where the former occurs, there may be a choice in the
concerned states hands, to determine a new boundary. In the event that it is
the latter, the boundary remains where it was originally fixed.[763] Though
accretion isnt particularly relevant in international law, it has been rather
important in practice between certain states in the United States.[764]
Boundary and territory-related Treaties and
Awards
Boundary treaties, or treaties dealing with boundaries and frontiers,
essentially enumerate the details of acquisition and loss of territory, or even
clarify any uncertain boundaries between states. Such treaties actually
account for the root of title in their own right. Such treaties essentially
establish an erga omnes regime of sorts, in that they establish a territorial
regime that is valid against the world at large.[765] The regime so created
by the treaty will be binding upon third states, and will continue with
permanence even in the event of the treaty coming to a standstill.[766] This
stems from the fact that there is a necessity to maintain stability and
constancy where international borders are concerned. An agreement may
establish or confirm a particular boundary line by referring to an earlier
174

treaty or an earlier document- which may even be a map, and this agreement
vests the boundary with undoubted validity.[767]
As a consequence of boundaries being brought into existence by way of
treaties, many a time, there happens to be a situation wherein the disputes in
relation to the boundaries themselves may be subject to the vagaries of
treaty interpretation. The rules governing the interpretation of treaties are
couched in Articles 31 and 32 of the Vienna Convention on the Law of
Treaties, 1969, and in good faith, in accordance with the ordinary meaning
that is to be given to its terms in their context, and in the light of their object
and purpose.[768] The idea is to understand the common aims, or the
common wills for the parties involved, which in turn would include the
understanding of the subsequent conduct of the parties involved.[769]
However, this issue is not without complications. Most boundary issues
deal with treaties that came into force much before the Vienna Convention
on the Law of Treaties, 1969, as a consequence of which the question of
which law is applicable arises. Jurisprudence points in the direction of
applying customary law, which is personified in the Convention, and
therefore, it is immaterial when the boundary treaty came into force.[770]
The advancements in science and technology have posed another problem in
the path of treaty interpretation when it comes to boundaries. In the
Botswana/Namibia case,[771] the Court dealt with the issue of identifying
the main channel of River Chobe, in relation to an 1890 treaty. It held that
the state of scientific development could certainly be used in an attempt to
understand what the treaty itself stands for. In the Eritrea/Ethiopia case,
[772] the Boundary Commission referred to the rule of contemporaneity,
which implied that when a treaty is interpreted, useful regard must be had to
all the circumstances that prevailed at the time of the conclusion of the
treaty. In relation to understanding this, one has to understand the events
transpiring in the course of practice subsequent to the treaty, and to the
objects of the treaties.[773] However, all the rules of interpretation hold no
value where the treaty is in itself very clear in establishing the boundaries,
or the territorial limits.
Boundary awards hold as much value in constituting a states title to a
portion of territory.[774] When a decision is passed as to the territorial
allocation, or to the boundary determination between two states, such a
decision in principle will bind the parties to the dispute. In addition,
however, it will also bind other states when there is no sustained protest
from them in relation to the determination of territorial expanse.[775] Even
if such determinations of boundary demarcation and territorial allocation is
175

not the consequence of an international courts decision, or an arbitral

forums award, such a determination may still be binding in character, if it
can be proved that the parties have consented to the initial decision.[776]
Cession of Territory
Cession refers to the peaceful mode of transfer of territory from one
sovereign to another. The underlying idea is that sovereignty should pass
from one to another, and, this mode of transfer of territory is most common
in the context of cases where peace treaties are entered into at the end of a
war. In a case,[777] cession was defined to mean the renunciation made by
one state in favour of another of the rights and title which the former may
have to the territory in question. A common example of cession is seen to be
cases of decolonization, or the transfer of sovereignty as a consequence of
an agreement between a sovereign authority administering power to
representatives of an indigenous population.
Cession is commonly effected by way of a treaty, which expresses the
agreement to transfer. It is essentially a bilateral mode of territorial
acquisition, considering that there needs to be the co-operation of two states
in order to effectuate the transfer. All other modes of territorial acquisition
are decidedly unilateral, considering that the acts of one state are sufficient
to constitute a title. In cession, the title conferred is purely derivative, since
the validity of the title is highly dependant upon the validity of the title of the
predecessor. Therefore, it is clear that cession is just a case of replacement
of sovereignty over a specified territory, which in turn, accounts for the
applicability of the rule of nemo dat quad non habet imperium, a rule that
implies that no one can give what he does not have. Thus, in the course of
transfer, the acquiring sovereign cannot enjoy any more than the rights that
were enjoyed by the previous sovereign. This is a rather important rule. If
the territory was subject to the use by a third state, the new state into whose
control sovereignty passes, is bound to respect it. As stated by Justice
Huber in the Island of Palmas case,[778] Spain could not give to the
United States, more rights than those that it had for itself. Of course, this is
not the case in other modes of territorial transfer, for the title in these other
cases is original, since they have nothing to do with what the former title
itself was like.
Cession is essentially built on the foundation of the intention of the parties
concerned to transfer sovereignty from one to another.[779] Devoid of any
signs of intention to transfer sovereignty, cession cannot operate. It is not,
however, a matter of certainty as to whether there needs to be an actual
delivery of property in order for there to be a case of valid cession.
176

Another case bearing relevance to Cession is the Island of Palmas case,

[780] where Spain had ceded the Philippine islands to the United States by
the Treaty of Paris, 1989. The treaty had actually gone on to establish that
the island of Palmas formed a part of the territorial expanse of the
Philippines. However, when the United States sought to take possession of
the island, it was found to be under Dutch control. Subsequently, arbitration
was embarked upon by the states involved, namely, the United States and
Netherlands. The United States claimed that the island belonged to Spain
before 1898, and the treaty it had entered into, also specified that such
territory was part of Philippines, and that it had acquired the territory by
way of cession. Judge Huber, the arbitrator, held that even if Spain did have
sovereignty over the island in question, it was clear that the Netherlands had
administered it since as early as the eighteenth century, which, in effect, had
supplanted the sovereignty of Spain over the island. Spain had left the island
in 1898, which left the United States without any room to acquire title over
the island from Spain.
Having perused the aforementioned instances, it is clear that there are
essentially two elements that go into making a normal cession. There needs
to be a treaty indicating an intention to hand over the territory. Secondly,
there needs to be an actual handing over of the territory, which implies that
there needs to be a handing over of control of the territory from one
sovereign to another sovereign. There have been many occasions
welcoming debate on whether these elements are really necessary, or
whether they can be dispensed with. The issue was under the scanner in the
Indian case of Union of India v. Maumull Jain,[781] An action was
brought in a court of law, by the respondents, with a view to seek relief
against the imposition of a couple of duties upon the consumption of petrol,
levied by the Municipal Assembly of Chandernagore, which was previously
a French territory and was ceded to India by way of the Indo-French Treaty
of February 2, 1951. Section 7 of the treaty warranted that all rights,
liabilities and obligations of the Government of the French Republic or the
Municipal Assembly or the Administrative Council in relation to
Chandernagore became the rights, liabilities and obligations of the
Government of India. The issue subject to judicial dispute was as to
whether the Union of India could carry on the litigation in its own name in
pursuance of the cessionary treaty, in relation to which Percepteur and the
Municipal Reserveur of Chandernagore were party; and, subsequently,
whether it could pursue appeals against the respondents. The respondents
contended that India could do so if its cession had legal validity, which they
believed, it did not. The court held that the Union of India did have the right
177

to seek appeal in its own name. The court looked into the constitutional
provisions governing the dispute, and went on to hold that even if it were
assumed that the treaty was not legally valid without a parliamentary
legislation, the transfer of territory to India remains accomplished since it
was accepted by both parties to the bilateral treaty. Therefore, whether or
not the treaty was legal or otherwise, the territory still remained with India.
The term legal validity in this context presumably implies the validity of
the treaty in the light of constitutional law. However, this contention is
irrelevant to the effect of the cession itself, because there has indeed been
an actual tradition of the territory. Therefore, the decision can be understood
to imply support in favour of an argument that where there has been
occupation as contemplated by the extent and ambit of the treaty, the
occupation is strengthened enough to subsist on its own, even if the treaty
itself finds itself non-existent. However, such an argument would not quite
subsist, given the fact that it is only a treaty that allows the grant of a legal
meaning to the very occupation by the cessionary state, and is indeed a
necessity in an effective cession.
This line of thinking was concluded in the Iloilo case.[782] By way of the
Treaty of Paris of 1898, Spain had ceded the Philippines to the United
States. With the exchange of ratifications, Spain was evacuate the islands. In
the course of events that transpired, Spanish troops were compelled by
local insurgents to withdraw from the town of Iloilo, and this was even
before the ratifications were exchanged. After the American forces had
made their entry, the insurgents had burned the town and in the course of
this, some property belonging to a few British subjects was lost. The
question was as to whether the United States was responsible, since the
British alleged culpable negligence on the United States part, since they had
delayed occupying the town. The claim was met with rejection, since in
cases of cession, sovereignty de jure and the related obligations did not
commence before the treaty of cession was ratified.
A clear pattern emanating from the aforementioned decision is highly
indicative of the fact that there is no particular tradition to be taken into
consideration, and either way, the cessionary State is entitled to occupy the
territory at any point of time after the treaty comes into force.[783] Thus,
once the treaty itself has come into existence, the cessionary state has the
right to cede the territory to a third power even without taking possession of
it himself.[784] Of course, while understanding this side of theory, one must
not ignore the decision in Reparation Commission v. German
Government,[785] where it was concluded that there may well be a valid
178

cession of territory, even after the territory may be occupied by a new State
and its existence and occupation maybe accordingly recognized. The
contextual decision also included a holding that the fact that the States of
Czechoslovakia and the Serb-Croat-Slovene Kingdom existed in fact, and,
that they were recognized by the Principal Allied and Associate powers on
the date of signing of the Treaty of Versailles, St. Germaine and Trianon did
not preclude the event of there being a cession of the territories involved in
the treaties. Even though the cessionary state was already in possession that
went unopposed, with the consent of the population, did not prevent the
emanation of this result.
Cession of territory need not be made in return for some consideration all
the time. Quid pro quo, thus, is not an important prerequisite. In the earlier
days, there were instances aplenty where force was used, or threatened to
be used, in order for the cession itself to take place in favour of the
victorious state. However, one has to keep the UN Charter in mind in the
present day, thereby leading to the understanding that there shall not be any
use of force to procure territory.
Cession is a common occurrence in any agreement that comes into place at
the end of a war, or as hostilities draw to a close. However, it is not
altogether uncommon in other circumstances. The United States of America
purchased Alaska in 1867 from Russia. Denmark sold certain territorial
regions in the West Indies in 1916 to the United States. These were pure
exchanges of territory. Cession is not altogether uncommon in the context of
situations evincing gifts of territory from one state to another.
In practice, however, with the exception of a couple of territorial alterations
ensuing at the end of a war, with a peace treaty being signed, such as, for
instance, Frances cession of Louisiana to the US in 1803 in exchange for 60
million francs, and Britains cession of Heligoland to Germany in exchange
for Zanzibar in 1890, Cession seems to have been relegated to being a thing
of the past.
Conquest, Use of Force and Territory
The title to a territory in the hands of a state derives validity from a plethora
of legal consideration. This is, of course, inclusive of ethical and moral
considerations as well, since law pivots upon the ground rule that no illegal
act can give birth to a right in law. This is a rather stellar rule in municipal
law, but International law often faces circumstances where it is required to
deviate from its generic and acceptable reactions, to the ramifications of
successful flouting of rules, in order to make room for the demands of
reality. This has, with due reference and parochialization to context paved
179

the way for the acceptance of the results emanating from the exercise of
illegal aggression in many instances.
Conquest refers to the act of defeating an opponent and occupying all or part
of its territory. It does not, however, by itself constitute any basis of title to
land.[786] Victorious entities enjoy the right of belligerent occupation,
along with a few rights in pertinence to the territory concerned. However,
the territory remains the legal possession of the ousted sovereign.[787]
Sovereignty does not pass with conquest, but legal issues aplenty come into
place when the territory was under a question as to its legal status well
before the conquest.[788] Conquests result from the use of force, both legal
and illegal. Force per se has been outlawed by the UN Charter under Article
2(4), and was also done by the Kellogg-Briand Pact of 1928. However,
force may be used only in the rare event of self-defense, which is in
response to a prior use of force by another state.[789] Nevertheless, it is
important to understand that it is not that because there has been a successful
use of violence, that territory is acquired. What happened under the
classical rules of conquest, was an acquisition of territory occurred with
every formal annexation following an act of conquest. This came to be on
account of a legal fiction, in an attempt to shield the conquest, and to
legitimize the acquisition of territory.[790] Practice never did clarify,
however, when this formal annexation ought to have been made- whether
during the war, or after the war is an issue that still needs clarification. It
seems logical that one has to decipher the juridical status of the territory in
dispute only at the end of the war, since the control by the state purporting
such annexation must be effective without as much as a possibility that the
former sovereign might regain the land. In the Nuremberg Trials,[791] the
rule that annexations occurring before the end of a war bore no
effectiveness, and were invalid in the eyes of international law was
emphasized. The tribunal also mentioned that the intention to annex is an
equally important ingredient. The conquest of Germany by the Allies in
1945 did not amount to a case of implied annexation by way of the
legislative control that was actually exercised, because the Allies had
categorically emphasized otherwise in their joint declaration.[792]
With the advent of the rule in writing, that a use of force is illegal, there is a
general notion that the acquisition of territory by force is illegal. In addition
to Article 2(4) of the UN Charter, the UN Security Council in Resolution
242, mentioned that the acquisition of territory by war was inadmissible.
Further, the Friendly Relations declaration has thrown light on the issue by
stating that the territory of a state shall not be the object of acquisition by
another state ensuing from the threat or use of force. It goes on to state that
180

no territorial acquisition resulting from the threat or use of force shall be

recognized as legal. The Iraqi annexation of Kuwait was unanimously
denounced in the Security Council Resolution 662 of 1990. In the light of
such jurisprudence, it would be wise to conclude that the acquisition of
territory at the end of a war, or an armed conflict would require more action
to fortify the claim- both, of an international and domestic nature- such as
perhaps, a treaty of cession, or the accordance of international recognition.
[793]

Discovery and Occupation of Terra

Nullius
Discovery is the act of finding an unknown territory, namely, territory that
has till such date of discovery, not been known of, and not been subject to
the sovereignty of any other state under International Law. European nations
were one of the earliest to adopt the principle that the discovery of any
territory, not under the control of another sovereign, not subject to effective
occupation by another state, gave title to the government by whose subjects,
or by whose authority, it was made against all European governments. This
title was to be consummated by way of effective and actual possession.
Discovery of new, unoccupied territory as a means to acquire territory is
related to the modern concept of Prior Occupation, whereby territory that is
terra nullius, or land that is in no ones ownership, is occupied and claimed
by a state as belonging to it. The conceptual framework of prior occupation
and terra nullius have recently been highlighted in two prominent cases,
that of the controversy concerning aboriginal land in Australia,[794] and
that of the dispute over the Senkaku (Diaoyutai) islets north of Taiwan.[795]
In the former case, the government had declared aboriginal lands to be terra
nullius to legalize the seizure of those lands by white settlers. Recently,
indigenous peoples have challenged this position in the courts. As for the
latter, with respect to the Senkaku islets, Japan's primary legal argument is
that they were terra nullius when Japan first claimed and possessed them.
As a result of this, Japan asserted that they had sovereignty based on the
principle of prior occupation of the territory unoccupied till then. In
response, the argument of Taiwan and the People's Republic of China was
that the islets were not terra nullius at any point but belonged to China at
the time of Japan's possession so the principle of occupation is not
applicable.
The principle of discovery is applied quite often in state practice, but is not
181

quite satisfactory from a legal standpoint, in that there may be a likelihood

of symbolic annexation being confused with the exercise of effectivits.
[796] Discovery will evidently be accompanied by symbolic acts involving
the planting of a flag and similar perfunctory acts. But such contributions
tend to blur the distinction. In the fifteenth and sixteenth centuries, it was
believed that mere discovery with nothing more, was sufficient to confer a
complete title.[797] However, research conducted in recent times is
depictive of a room for doubt that it gave much more than just an inchoate
title, since there needs to be an effective act of appropriation of the territory
concerned.[798] In the Island of Palmas Arbitration,[799] it was argued
by the United States that since it was a successor of Spain, it derived title
from the Spanish discovery of the territory. Justice Huber reserved his
opinion on this point, but went on to state that even if discovery without
anything more did give title at that point of time, the continued existence of
the right must be determined in accordance with the law prevailing at the
specified time, which is in effect, the critical date. He noted that an inchoate
title of discovery needs to be completed within a reasonable span of time by
the effective occupation of the region that is claimed to be discovered.
Support for this view is found in the British and the Norwegian state
practice.[800] American practice indicates that a mere discovery gives no
title, whether inchoate or otherwise. Discovery is not a stand-alone branch
of law, since it makes sense only in the event that it shares contextual place
with the rules of effective occupation, and thus, it seems like modern law
could comfortably ignore this mode altogether.[801] The concept of an
inchoate title is rather misleading. A title can either exist, or not exist. If
anything, it may be a weak title, if it rests upon the foundation of evidence
that is weak.
Related with the concept of discovery, is the principle of symbolic
annexation. Symbolic annexation refers to the declaration, or any other act
of sovereignty or may also be an act of private individuals which may be
ratified subsequently by states with a view to providing unequivocal
evidence of the acquisition of sovereignty over a portion of territory. Where
the territory concerned is uninhabited, inhospitable and remote, oftentimes,
very little is need in the form of state activity, and therefore, the first
decisive act of sovereignty is enough to evince a valid title.[802] However,
this is not to forget the fact that in principle, a state must simply exhibit the
effectivits required to lay claim of sovereignty over the territory.
Nevertheless, jurisprudence reveals that symbolic annexation does not quite
give sovereignty except in rare circumstances, or under special conditions.
[803] The Clipperton Islands case[804] is of particular relevance. A
182

lieutenant in the French navy, with due authorization, proclaimed French

sovereignty over the Clipperton island, while cruising close to the island in
1858. Such event was notified to the Hawaii Government by the French
consulate. After inactivity in the intervening period, in 1897, a French
vessel chanced upon three Americans collecting guano on the island, for an
American Company. At that juncture, the United States had clearly indicated
that it had no intention of claiming sovereignty. In the same year, a Mexican
gunboat docked on the island, bringing within its fold, the makings of a
diplomatic controversy. Mexico asserted discovery by Spain as being its
supportive contention. However, the arbitrator in the dispute went on to
assert that even if a historic right existed, it was not augmented in any way
by Mexicos conduct and manifestation of sovereignty. In the light of the
assumption that the territory was actually terra nullius, the question boiled
down to whether, France had proceeded towards securing an effective
occupation, and whether, in the negative, Mexico had a right to deem the
island as open to occupation in 1897. The arbitrator went on to state that a
condition of occupation involved an actual taking of possession which
consisted in an act or a series of acts by way of which the territory is
reduced to possession by such state which does the above. As a
consequence thereof, France acquired the island when sovereignty had been
proclaimed in 1858. This was a case where symbolic annexation actually
did have effect.
But, where the situation involves res nullius or the incident of two states
competing for territorial sovereignty, such symbolic annexation is accorded
the status as valuable evidence. Where there has been a prior, formal
annexation of a territory by another state, such annexation cannot prevail
against an actual and continuous display of sovereignty by another state.
[805] Since formal annexation creates a little more than an inchoate title, the
competing state can succeed in its claim only in the event that it indicates the
existence of prescriptive right, or, by way of proving acquiescence on part
of the other state in its claim. If too much is asked for in terms of the
maintenance of rights, there may be a revival of the erstwhile concepts of
effectiveness and may, in turn, encourage a threat to peace. It would be far
to unhelpful if there were a need for a determinate quanta of effectivits in
the context of remote islands.
Geographical Contiguity
Geographical contiguity, strictly speaking, is not quite a mode of territorial
acquisition under international law. Nevertheless, on account of the fact that
183

it has been raised as one of the major contentions by state parties to disputes
relating to territory, it is of relevance in a study of the various modes of
territorial acquisition. The principle has importance in the Law of Sea,
where it has played a role in determining disputes in relation to territorial
sea, or continental shelves. In the Eritrea/Yemen case,[806] it was laid
down that there was a strong presumption that islands within the twelvemile coastal belt would belong to the coastal state, a presumption that
would be rebutted only by way of evidence of a superior title.
Although contiguity is not quite a method of titular acquisition, it is a rather
helpful factor in determining the manner in which a case puts its contentions
forth, in support for its claim. There may be plenty of issues raised in a
dispute about territory, and it is not altogether impossible for a state to argue
a case on law, facts and political ideology. Naturally, a state would be
driven to convince the court or tribunal that it has a stronger case, since it is
fortified with more than just the legal merits.[807]
Historical and Original Title
Sometimes, a state may lay claim to a territory by asserting the submitting
that there is a historical, original or an ancient title to the land in question.
The concept is couched in the well-known principle of immemorial
possession, or, possession since time immemorial. It involves the vesting of
reliance upon evidence bearing general repute, or, bearing adequate opinion
in favour of matters bearing historical worth. This has come to play a rather
significant role in Asia, where traditional boundaries have been accorded
importance. The concept has been given ample importance by international
tribunals in their decisions.[808] However in actual practice and usage, it is
extremely vital that any contention in augmentation of a claim to a historical
title must be proved satisfactorily. However, Judge Huber did not quite
accept contiguity as a ground for acquiring title. He was known to have
said, that it is impossible to show the existence of a rule of international
law, to the effect that the island situated outside the territorial waters should
belong to a state from the mere fact that its territory forms the terra firma,
i.e., the nearest continent or island of a considerable size.[809] He also
went on to mention that the principle of contiguity would be inadmissible as
a legal mode of determining questions of territorial sovereignty, since it was
wholly lacking in precision, and could, in the course of its application,
result in arbitrary results.
Nevertheless, one cannot rule out the fact that the principle may be
construed as important enough to raise a presumption of effective
occupation. In the Eastern Greenland Case,[810] the Permanent Court of
184

International Justice accepted that it was willing to take into account

contiguity in fortifying its conclusion that Denmark did indeed enjoy
sovereignty over Greenland when the actual settlement scope was limited.
Historical Consolidation of Title
Historical consolidation of title is one of the principles that may be relied
upon, when the territorial expanse in question is not based on an
unequivocal treaty of cession bearing a reference to such territory. When it
comes to title to territory, one must note that titles are always governed by a
couple of basic, underlying rules, such as sovereignty, recognition, consent
and good faith. Initially, on most accounts, title to territory is relative, in that
it depends upon recognition of the titular transfer on account of any modality
of transfer. With the securing of recognition, it becomes absolute. With
absolution, the title begins to gain multiplicity in its roots, in that it
undergoes a process of Historical Consolidation.[811]
The possibility of using this theory as a mode of acquiring territorial title
was advocated by Professor Charles de Visscher,[812] in keeping with a
principle enunciated in the Norwegian Fisheries Case,[813] where he
himself was a judge. He noted that consolidation of historical title is
accepted in international law on account of the fact that states in
international law wield interest in maintaining stability of territorial
situations from the perspective of peace and order. Encapsulated by the
maxim quieta non movere, the idea is to not disturb things that are at peace.
Consolidation has plenty of practical implications for territories that are not
yet finally organized under a State regime, as well as for certain stretches of
sea-like bays. The process is not subject to the conditions specifically
required in other modes of territorial acquisition. At the very base of its
existence, consolidation requires proven long use. However, such long use
is only a representation of complex interests and relations which have borne
effects of attaching a territory to a state. These very interests and relations,
that change on a case-to-case basis, that should be given importance in
deciding in concreto the existence or non-existence of any form of
consolidation of historical titles; and not the passage of a stipulated period
of time. Scholastic perception has indicated that this marks the difference
between acquisitive prescription and historical consolidation.
Historical consolidation is much more than just a terminological reform. It
essentially implies a mode of titular acquisition, and may essentially
become subtly different from what is understood from occupation and
prescription.
Occupation
185

Occupation refers to the acquisition of sovereignty with respect to territory

that was terra nullius until such acquisition. The term occupation comes
from the Latin word, occupatio, which means the acquisition of terra
nullius, which in turn, is a term used to denote such territory that has not
ever belonged to a state.[814] This is inclusive of both kinds of territory,
i.e., those that have not been subject to the sovereignty of any state
whatsoever, or, those that may have been abandoned by the previous
sovereign for whatever reason. Abandonment of territory requires two
elements, the animus and corpus, i.e., there should be an intention to
abandon the territory, and, the subsequent failure to exercise authority upon
the territory.[815] This point can best be analogized with the conceptual
framework of municipal law, in relation to losing property, and actually
throwing it away or discarding it. In the former, loss of the property is not
accompanied with the intention of non-usage, as the element of loss
indicates non-intervention on part of the person in possession. However,
where the latter is concerned, there is evidently an intention to do away with
the property altogether, coupled with the physical manifestation of the same.
Today, there are virtually no zones that count for being accorded the status
of terra nullius, since most territorial zones come under the ambit of the
sovereign control of some state or the other in the international realm.
However, territorial disputes are plenty, with questions that go to the very
root of title, which involve a question as to the status of the territory at the
time of its acquisition. The classic example of such a dispute would be that
of the Falkland Islands case,[816] between the United Kingdom and
Argentina. In the early eras, European legal scholars were oftentimes found
to be reluctant to admit that non-European societies constituted states under
International Law, and were, in turn, quick to regard the territory inhabited
by non-European people as terra nullius.[817]
Occupation is said to occur when the territory in question is placed under
the effective control of a state. For the sake of effective control to exist, a
couple of strict requirements are to be fulfilled. The extent of importance
attached to this is essentially on account of the scarcity of terra nullius
land. Back in the sixteenth century, large, unoccupied areas were beginning
to be discovered.[818] At that point of time, effective control was accorded
liberal interpretation, since mere discovery gave an inchoate title, which, in
effect, was an option to the state to a occupy the territory within a
reasonable time, during which time other states were not allowed to occupy
the territory. Of course, this changed with time, as international law began
demanding more to depict effective control.[819] In the present day,
however, the rule of effective control has been construed as a relative
186

concept, since it varies largely based on the nature of the territory

concerned. To put it in terms of an example, it would be much easier to
exercise effective control over barren, uninhabited land, as opposed to
territory where there are people who put up a fight in event of any other
state seeking to take over sovereignty. In the Eastern Greenland Case,
[820] effective occupation is relative in relation to the extent to which the
sovereignty is claimed by the state. when two states contest claims over one
territorial portion, the stronger of the two is the one that gains territorial
sovereignty. Some scholarly opinion indicates that it is not only that the state
must exert effective control, but also that such control needs to be
accompanied by such intention and will, as is necessary, to act as a
sovereign. As a consequence, thus, the independent activity of private
individuals bears little value, unless such private person acted in pursuance
of some authority received from their governments, or, in that any other
manner that their government exercised jurisdiction through them.[821]
Arrangements between states may be effected, such that the states agree not
to make claims, with a view to maintaining the territory as terra nullius.
This has been done for outer space, through the 1967 Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies, and, for Antarctica,
through the 1959 Antarctic treaty. The latter is of particular significance,
since several states had laid claims to various areas of Antarctica, with one
claim overlapping another, ultimately leading to disputes. The 1959 treaty
quelled the disputes well and good, by eventually being signed and ratified
by all the states that evinced interest in Antarctica. One good thing that the
treaty brought forth, was the prohibition of withdrawal from the treaty
within the first thirty years of the signature of the same. The treaty allows
for freedom of movement, scientific exploration and fair use of Antarctica,
throughout the body of its territory, and the parties have endeavoured not to
use it for any form of military purposes. This is all buttressed with Article
IV, which staunchly asserts that no activities in Antarctica can be used as a
basis for asserting, supporting or denying a claim to territorial sovereignty,
or to create any form of rights in the territory itself. This has led to the
acceptance of Antarctica as belonging to the international commons,
governed by the principle of common heritage of mankind.
Prescription
While occupation applies to terra nullius, prescription applies to a territory
that already had a sovereign. Prescription refers to the long occupation of
territory by a state, and the implicit acquiescence of the erstwhile sovereign
187

now dispossessed of such territory, in the occupation. Prescriptive

acquisition of territory is built on the foundations of estoppel and
acquiescence, since, if a state sleeps on its rights, it cannot seek to revive
them against a State that has been enjoying those rights for a continual, long
period. International Law has no set time period for the enjoyment of
prescriptive title, or for such title to mature. Prescriptive acquisition does
not require an animus in order for one to acquire a title. What is enough in
cases of prescription, is de facto control and the exercise of sovereignty. In
the Frontier Lands case,[822] litigated between Belgium and the
Netherlands, the ICJ held that the Netherlands act of sovereignty in the
territory at different points of time in derogation of the Boundary
Convention of 1843, which vested the land in Belgium, was not enough to
extinguish the sovereignty of Belgium over the territory. Nevertheless, the
court was welcoming of the fact that title can be established by way of
prescription.
Prescription exists in two forms- extinctive and acquisitive. Extinctive
prescription requires that a claim has to be brought within a reasonable span
of time. However, for acquisitive prescription, it is necessary that a claim is
brought within a reasonable period of time. In all cases of acquisitive
prescription, title emanates from long-standing possession, continued over a
rather lengthy period of time. This is, of course, in keeping with the fact that
there has been no formal protest, or, that all the parties interested, and all
affected states have each acquiesced in the exercise of authority.[823] If
there is any protest whatsoever, it needs to be effective and actual, in that
mere diplomatic protests are not enough. What needs to be done, is a
subsequent reference to an international organization, or an international
tribunal, except when it is not possible to resort to such a measure. There
will be a comparison, before any international tribunal or court seized with
the issue, between the prescriptive title on the one hand, and the quantum of
action required to put a spoke in the wheel of its fructification.
A study of Prescription as a mode of acquisition is incomplete without a
perusal of the Chamizal Arbitration,[824] a case between the United States
of America and Mexico. The United States claimed and sought to join an
area, called the El Chamizal tract, of around 600 acres after the Rio Grande
changed its course. Initially, the Rio Grande had, for a portion of its length,
made a boundary between the United States and Mexico, identified and
fortified by way of a treaty in 1848. The United States justified its claim on
the ground that it had acquired it by prescription that was undisturbed,
uninterrupted and unchallenged. Ultimately, the claim was rejected since
Mexico had indeed made a couple of protests, culminating in the 1884
188

Convention between both countries, settling their rights in congruence with

the change of Rio Grandes path. Mexicos acts, in such manner, were
tantamount to effective protest, and the United States ultimately agreed to
submit the dispute for resolution before a competent tribunal in 1895. The
Tribunal concluded that a part of the Tract which resulted from a gradual
process of accretion belonged to the United States but the portion that had
ensued from a flood in 1864, was Mexicos.
The Falkland Islands case,[825] between Argentina and the United
Kingdom, the subject matter of the dispute was the Falkland Islands, also
known as the Malvinas. Britain sought to lay its claims on the ground of
prescription and self-determination. It submitted that it had an open,
continuous, effective and peaceful possession, and also had occupation and
administration since as early as 1833 with the exception of ten weeks when
there was a forcible occupation of the territory by Argentina in 1982. It also
asserted that it exercised authority according to the wishes of the islanders,
as expressed by way of their democratic selection of representatives
through an election. Counter to these lines of argument, Argentina presented
its claims that it succeeded to the islands on account of being the successor
of Spain, and on account of the rule of uti possidetis, and that it had also
made a couple of formal protests since as early as 1833, to the British
Government initially, and then at the United Nations and a couple of other
International Forums. Having understood the contextual framework flanking
the dispute, it is clear that it is quite difficult to determine the claim of the
two states over the islands, because, in the context of prescription, effective
control of the territory in question alone is not enough, because it is also to
be accompanied by the acquiescence of the state losing its claim. Other
states have evidently acquiesced. Another generally suggested method for
British acquisition of sovereignty over the islands, was brought to fore in
the light of conquest, a method recognized back in 1833. Inter-temporal law
justifies the acquisition of the islands by conquest.
Occupation, Prescription and Exercising
Effective Control
Whether occupation, or prescription, the exercise of effective control over
territory, and the peaceful and effective exercise of sovereign functions is a
rather integral facet to the acquisition of title to territory under International
Law. Effective control, per se, can be understood in two aspects. When the
exercise of authority occurs in a territory that does not already belong to
another state, i.e., terra nullius land, such exercise is best known as
effective occupation. But, when there is an exercise of authority over
189

territory that already, formally, belongs to another state, such title is

prescriptive. Nevertheless, the basic difference between both concepts is
merely one of degree. The essential elements sacred to both, is the actual
and effective exercise of state functions on the territory. Determining
whether any case is classified as occupation or prescription is dependent on
the recognition of the fact that some other state did, or did not have a valid
title to such territory at an earlier time. Once this is established, the extent of
effective control is also to be taken into consideration. In the Botswana v.
Namibia case,[826] Namibia and Botswana had settled on the conceptual
framework of a claim of prescription as comprising four conditions, namely,
first, that the possession had to be exercised in character of a sovereign;
second, that the possession must be peaceful and uninterrupted; third, the
possession must be public; and, four, the possession must endure for a
length of time. Though the Court did not quite comment on the role and
importance of prescription in International Law, and did not indicate any
approval or disapproval of the formula as laid down by both states, this
conceptual framework just about sums up the quintessence of what
prescription itself stands for. The underlying tenet is ultimately effective
control, which is also a rather integral concept where occupation is
concerned. Prescription, however, has one added challenge, in that there
exists a present, and subsisting sovereign, who must either be displaced or
acquiesce to the new title holder.[827]
Effective control was best explained in the context of the Island of Palmas
Case,[828] where, by way of the Treaty of Paris, 1898, Spain ceded
Philippines to the United States of America. The United States was under
the impression that the Island of Palmas was included within the ambit of
the territory ceded to it. But, in 1906, the United States came to find out that
the Netherlands had established its presence over the territory. A subsequent
arbitration proceeding witnessed two parallel contentions, namely, the
Netherlands claim that it had title by way of peaceful and continuous
display of sovereignty over the territory, and, the American claim that it had
title on account of cession from Spain under the 1898 Treaty. Justice Huber,
the arbitrator, recorded a finding in favour of the Netherlands, and upheld
their claim. His statement in the course of the decision is oftentimes deemed
to be a classic statement on the theoretical ideas of sovereignty and the
acquisition of territorial title. He went on to note that sovereignty was
implicative of independence, and this meant the power to exercise functions
of a state within the territorial ambit of the state involved. Gubernatorial
display would, as a consequence, prove to buttress their claims over the
territory. For the acquisition of territory, thus, the crux of the issue is the
190

question of whether sovereignty was exercised upon such territory at the

critical date. Obviously, if the answer is an affirmation, it would easily
stand to defeat all claims to the title. Justice Huber noted that the continuous
and peaceful display of territorial sovereignty is as good as actually having
title.
What needs to be there, in effect, is an apparent display of sovereign
control. The state seeking to lay claims to the territory, needs to have
wielded powers of a state within the territory in question. The state would
have to indicate that it has an effective local administrative set up, that it can
capably control and protect its populace, and that it has a functional code of
laws to govern its people with. To put it in a single line, the state seeking
territorial title needs to show that it has behaved as a state, in relation to the
territory. However, this is not to say that every state function is a piece
relevant to the puzzle.[829] In the Case Concerning Sovereignty over
Palau Litigan and Palau Sipadan (Indonesia v. Malaysia)[830] the
relevant acts were enumerated, as being those that are specifically referable
to the territory involved, those that have been pursued with an intention and
will to act as a sovereign and to be regulatory, legislative, administrative,
judicial, quasi-judicial in nature. Not every act can be considered an
exposition of sovereignty, for it is absolutely clear that some activities
would be too trivial, or too disconnected with the sovereign nature of the
authority, and wouldnt do much to establish control and independence, and
hence do not count. Namibia, in the earlier mentioned legal dispute, couldnt
claim title by prescription, since the acts of occupation did not amount to a
function of state authority, but in reality, were only just a couple of sporadic
acts in pertinence to culture and agriculture.
Having established the actual requirements, it is necessary to remember that
the degree, extent and quantum varies from case to case, depending on the
territory in question. In the Clipperton Island Arbitration case (France v.
Mexico),[831] the territory in question was a small, uninhabited coral reef.
French title was found to have been established, even though there were
only minimal acts on the part of the French Navy and a couple of
proclamations of sovereignty in public journals. These acts were deemed to
have been acts of effective occupation, since they were coupled with the
intention to actually exercise sovereignty. In the Eastern Greenland case,
[832] Denmarks display of sovereignty comprised the granting of trading
concessions over the territory, and a couple of instances of minimal display
of administration. It was upheld as being sufficient, since the manner of
assessment is relative- i.e., the determination of ownership by the court
191

relies upon whichever of the two claims is stronger. In a way, the claim is
also relative to the nature of the territory itself. In the Palau Litigan case,
[833] the ICJ held that small islands bearing little or no commercial or
economic significance may need very little in terms of sovereign acts to
establish title, of course, provided that the acts itself bore sufficient
sovereign quality and were in furtherance of an intention to exercise such
sovereignty. What would fortify this claim, in turn, would be the
acquiescence and lack of protest on the part of other states.
While this indicates a favourable trend, the ability to behave like a state
where a territory is concerned, is not always sufficient. In the Land Island
and Maritime Frontier Dispute Case (El Salvador v. Honduras),[834] it
was clarified that the display of sovereignty would not compulsorily be
decisive in favour of the state, if there is another state that could establish
title to territory by way of some paramount legal title. A classic example is
the Case Concerning the Territorial Dispute (Libya v. Chad), [835] a case
involving a face-off between two different bases of claims, dealt with a
claim founded on the exercise of effectivits, and a parallel one founded on
uti possidetis, where the former could not defeat the latter, although it may
have contributed towards modifying a territorial boundary established in
such a manner, with due regard to the fundamental rule of stability of
boundaries. Some instances of judicial opinion have depicted an acceptance
of peaceful and continuous display to be a part and parcel of sovereignty.
[836] Similarly, in the context of the Frontier Dispute (Benin v. Niger),
[837] which reaffirmed the opinion in Frontier Dispute (Burkina
Faso/Republic of Mali),[838] it was stated that pre-eminence is accorded
to legal title over effective possession as a basis of sovereignty. It may seem
like there is a different trajectory being traversed by the more recent cases,
and that they do not quite settle with Palmas case. However, there is a
paradigm shift of sorts in international law, since there is a rapid move
towards a system of sovereignty built on principle and not on power.
In addition to the display of sovereignty, an intention to exercise sovereignty
is necessary. This was described to be a rather integral factor in claiming
title to territory in many a decision.[839] Usually, the existence of an
intention can be culled out from the simple fact that the state is exercising
such authority in the territory.
Critical Date
In certain circumstances, it is possible that there may be a determining
moment, one at which it is possible to infer that the rights of the parties
concerned have crystallized so that acts subsequent to it cannot affect the
192

legal position.[840] Such a moment may either be the date of a treaty whose
provisions are in dispute, or may also be the date on which a territory was
occupied.[841] The Critical date refers to the date on which the dispute
over territory crystallizes. In most disputes, a certain date holds
significance in the context of rival claims and contentions.
It is not necessary that every dispute be tied to a critical date, nor is it even
possible that every dispute will have a critical date. However, where there
does exist a critical date, all acts subsequent to it do not matter, unless such
acts are actually a continuation of all prior acts and are not undertaken for
the sake of improving the legal position of the party seeking to rely upon
them. The choice of the critical date or dates remains with the tribunal that
is vested with the responsibility to decide the dispute.
Once a date is chosen, all the events subsequent to it, relating to the
territorial claim itself, will be ignored. Therefore, beyond the critical date,
no evidence of title adduced will be admissible. In the Island of Palmas
Case,[842] the United States sought to lay a claim on the island on account
of being a successor to Spain, by the treaty of cession of 1898. That date
was deemed the critical date, and the case was decided entirely based upon
Spains rights at that point of time. Similarly, in the Minquiers and Ecrehos
case,[843] France and the United Kingdom brought to fore two totally
different critical dates. Nevertheless, a choice between both was not made.
Since this decision, there has been frugal reference to critical date by
international tribunals.
Critical date bears particular significance in relation to the applicability of
the rule of uti possidetis, where the successor state gains the same
territorial expanse and boundaries as the predecessor. In all such cases, the
date of independence is the critical state.[844] This is not a hard and fast
rule, of course, because there is no preclusion of the likelihood that the
relevant territorial situation or the rights of the state had already crystallized
at a time much earlier than the chosen critical date, and has been established
but not altered later.[845] When more than one state lays claims to the
territory, the first independence date bears more relevance and significance,
because this date marks the date of succession to boundaries established
with binding force by past treaties and agreements.[846]
Inter-temporal Law
When a dispute arises, as to the title to territory, oftentimes, they go to the
very root of the title. To decide such disputes, thus, it would be wise to keep
up with the law as it was at the relevant time, and not as to what the law is,
193

at the time of the dispute. The basic tenets of intertemporal law were
explained in the Island of Palmas Case,[847] where Judge Huber
explained it to mean that the law to applied in a given dispute is the law that
existed at the time when the dispute was to be settled, i.e., the critical date.
If, in keeping with this case, the critical date was 1898, then the dispute
ought to be decided with due reference being made to the law that existed as
of 1898. Intertemporal law is by far, one of the most important concepts in
deciding disputes pertaining to territory. It also, indirectly, drives home the
fact that the present law relating to the crux of the dispute, cannot be forced
into having retrospective effect. Going back to the factual matrix of the
Palmas case, it is clear that the acquisition of the title to territory by way of
conquest, i.e., a use of force, is outlawed in the present day on account of
the prohibition on the use of force. However, it was fully acceptable before
1945. This indicates, that, perhaps, even a use of force to acquire territory
in an era before the UN Charters advent, may not be open to question,
whatsoever, even if it is outlawed by the present legal framework.
The underlying notion of Max Hubers ideology, was that acts should be
judged in the light of contemporary law, but also, those rights once acquired
may be lost if they are not upheld in accordance with the changes in the law,
brought about by development and evolution of the law itself.[848] The crux
of the doctrine can best be encapsulated in two points. Primarily, it requires
that there must be an acquisition of title by way of some acceptable means,
and, that such inchoate title ought to be followed by an explicit
manifestation of authority by the sovereign, in a manner effective enough to
allow the inference of full-fledged and continual possession at the time
when the dispute comes up.[849] However, it was also noted in the case,
that, while the creation of a set of rights depends on the law at the relevant
time, the continued subsistence of the rights were preponderant on the
evolving legal systems, though such stringency would not be put to use in the
case of territories bearing an established boundary regime.[850] The
statement encapsulates a proviso of sorts, which has, in turn, been subject to
careful interpretation with astute flexibility, within the ambit of other allied
rules such as those of acquiescence and recognition.
The principles framed by Judge Huber found affirmation in a host of other
decisions. In the Grisbadarna case,[851] the assessment of a factual matrix
dating back to the seventeenth century, was done in the light of the law in the
seventeenth century. Similarly, in the Eastern Greenland Case,[852] the
principle of intertemporal law saw application where the varying
requirements of international law as regards territorial title were taken into
194

consideration, in relation to the thirteenth and fourteenth centuries, at which

juncture the facts were couched. The continuity in the display of state
functions was deemed integral to the fortification of the Danish titular rights
over the territory. The court, for the same reason, explored the sovereignty
exercise throughout successive periods of time, until the time when Norway
proclaimed its occupation and concluded for each period, that in the
absence of a contesting claim, Denmark displayed sufficient authority to
evidence and confer a valid title to sovereignty.
It is a generally accepted notion that a juridical fact ought to be taken into
consideration with due regard to the law contemporary with the dispute, and
not the law in place when the dispute is sought to be settled, or is raised.
However, there have been instances where states have decidedly sidestepped this rule. In the 1961 issue when the Security Council examined the
Indian invasion of Goa, India asserted that the Portuguese title acquired by
conquest circa 16 Century was invalid in the light of the rules for territorial
acquisition in the 20 century. Similarly, in the Aegean Sea Continental
Shelf Case,[853] it was declared that in interpreting the statement disputes
relating to the territorial status of Greece, implied a Greek reservation to
the 1928 Kellog-Briand Pact, which indicated that it had to be interpreted in
keeping with international law as of the date of the cases hearing, and not in
keeping with what the law was, in 1931. This led to the full-fledged study of
the evolution of the rules relating to the Continental Shelf under International
Law, ultimately leading to the decision that Greeces territorial expanse
included its continental shelf, although, in reality, the concept had no place
in the 1920-1930 legal regime. It may seem a case of choosing what the
state feels the best remedy in keeping with its own needs, but it is in keeping
with the rule of law doctrine, that there shall be a preclusion of retroactivity
for any legal rule. If the law is allowed to enjoy retroaction, it could
jeopardize the territorial interests of many a state that had acquired such
title to territory in a means that is not approved by the present day law.[854]
th

th

The rule of Uti Possidetis

The rule of uti possidetis suggests that the boundaries of newly constituted
republics would be the same as those of the colonial provinces under
colonial powers which they succeeded to.[855] The term is derived from
Roman Law, where it was used to denote an edict of the praetor, the ultimate
purpose of which was to essentially preserve litigation that was pending,
nec vi, nec clam, nec precario, between the claimants involved.[856] In
international law practice, however, the doctrine of uti possidetis evolved
195

in the 19 century, when the administrative boundaries of the erstwhile

Spanish Empire in Latin and Central America were sought to be made into
the international boundaries of the newly independent states emerging from
under its colonial rule. The rule also found roots in post-colonial Africa,
when the erstwhile colonial boundaries were deemed the confluence of the
evolution of boundaries of the newly independent states, and later, became a
well-recognized policy by the Organization of African Unity.[857] The
reason for such a policy being put to practice was that when the colonial
powers were withdrawing from the zones they had colonized, there was a
need to prevent any damage to already established boundaries. In Africa,
especially, boundaries were arbitrary and deviant in relation to the ethnic
and tribal segregations. Many a time, such an issue led to secessions, as was
the case with Belgium Congo and Nigeria. Administrative efficacy and
convenience was to be given precedence over ethnicity and cultural
divisions.
Uti possidetis has, perhaps, come to be acceptable as a norm of customary
International Law, not only just in Africa and Latin America, but in most
other parts of the world where states emerged from under the thumb of
colonial rule. In the Frontier Dispute (Burkina Faso v. Mali),[858] the
ICJ endorsed uti possidetis as being a generic principle, referring to the
intangibility of boundaries and frontiers inherited from colonization.[859]
The rule does not limit itself to geographical confines, in that it is generic in
its applicability, given that it is purely logical in its surmise as to the
consequence of attainment of independence. The idea, ultimately, is to
prevent the independence and stability of new states being endangered by
fratricidal struggles provoked by the challenging of frontiers following the
withdrawal of administering power.[860] In El Salvador v. Honduras,
[861] it was laid down that the rule of uti possidetis was essentially a
retrospective principle, in that it invested as international boundaries, all
the administrative limits that were, at one time, intended for different
purposes.[862]
The principle has feasibility in being applied in circumstances where there
has been a grant of independence at the end of colonial rule. However, what
becomes of the principle and its capability of being applicable in cases of
secession, or dissolution of states, is a different matter altogether. In the
context of the dissolution of the former Yugoslavian territory, where the
federal state was carved out of the territorial expanses of the erstwhile
Ottoman Empire, the Arbitration Commission on Yugoslavia exposited the
position of law, in Opinion No.2.[863] it went on to say that though
th

196

international law did not spell out all the consequences of the right to selfdetermination, it was a rather well established rule that self-determination
ought not to involve any changes to the existing boundaries and frontiers at
the time of independence, by way of uti possidetis, except where there is an
agreement deciding otherwise, between the states involved. As a
consequence of this statement, the full import emanating therefrom was that
the Serbian populace in Bosnia were granted full-fledged human rights
protection, and that was entirely bound by the frontiers of erstwhile BosniaHerzegovina. Opinion No.3 also reflected the same line of thinking, where it
observed that the former boundaries become frontiers protected by
International Law, except where the agreement denotes a contrary intention,
and it was also asserted that the conclusion emerges from the respect for
maintenance of territorial status quo and specifically from the rule of uti
possidetis.[864]

Self Determination and Territorial Title

With the creation of the United Nations in 1945, it had 51 members at that
point. With time, the membership has risen to nearly 200, with many a state
emerging independent at the end of long drawn colonial rule. The move
towards attaining independence came up immediately with the ceasing of the
Second World War, but only after the passage of the 1960 UN General
Assembly Resolution on the Granting of Independence to Colonial
territories and Peoples, that self-determination came to be regarded as much
more than a political viewpoint, and actually as a legal right. Today, of
course, the principle has been brought into effect as a legal rule itself, and
has come to be regarded as a rather important rule. Self-determination may
well be regarded jus cogens. In the East Timor Case,[865] the view upheld
was that self-determination was deemed one of the essential principles of
customary international law. In the Palestinian Wall Advisory Opinion,
[866] the Court was known to have explained that the right of selfdetermination, as possessed by a people, was of an erga omnes nature. It
has also been incorporated in the UN Charter, emphasized in the
International Convention on Civil and Political Rights of 1966, and the 1970
Friendly Relations Declaration. Self-determination may well relate to the
people, but does, without doubt, bear some overtones on the territory in
question. Self-determination, in effect, means the right of a people to
determine their own political, economic and social status of their own. This
would, definitely bear impacts on the territorial integrity, since it entails the
197

creation of a political identity, which in turn orchestrates the exercise of

sovereignty over a piece of territory.
Self-determination has been interpreted to refer only to the inhabitants of
non-independent territories.[867] There are frugal incidents in practice,
which depict support for its application as a principle conferring the right to
secede upon identifiable groups within the ambit of already independent
states.[868] In the Reference Re Secession of Quebec case,[869] it was
declared that international law expects that the right of self-determination
will be exercised by people within the framework of existing sovereign
states and consistently with the maintenance of territorial integrity of those
states, and, the right to unilateral secession emerges in the most extreme
cases, and even then, is quite well-couched in carefully defined
circumstances.
In most instances, when there is an exercise of self-determination as a right,
it automatically warrants the acquisition of independence. It is not necessary
why this is the way it should be, because it is possible for a people to
associate themselves with another state, or may even choose to add to
another states territorial expanse.[870] What is necessary in selfdetermination, thus, is the assertion of a free and genuine expression of the
need for it. When there is a grant of independence, there automatically
arises an application of the uti possidetis doctrine.
The only possible exception where there is a likelihood of external selfdetermination, are colonial situations, where the group may find itself
subject to a rather extreme and unremitting persecution along with a lack
of any reasonable prospect for reasonable challenge[871] Secession is
best dealt with by international law, with a catena of rules governing the
process of making a claim, of effective control and international
recognition.
Self-determination, in many ways, has implications on territorial
sovereignty, and also fits in with the principle, in that it cannot come into
play when a colony or a trust territory gains sovereignty and independence,
except in some extreme circumstances. This has been evidenced by the case
of Somalia with its claims to portions of Ethiopian and Kenyan territory,
populated by Somali tribes.[872] Nevertheless, it received very little
support in its claims.
One point that must be remembered is that self-determination cannot be
resorted to, with a view to further already large claims to territory while
defying internationally accepted boundaries of sovereign states. However,
the principle finds some acceptance in that it may be helpful in resolving
198

cases of disputed boundaries based on the inhabitants aspirations. Another

avenue in this regard is a case of fortification of claims with geographical
arrangements, a practice which has been rather prominent in history. France
has relentlessly asserted that its natural frontier in the east was the West
Bank of the river Rhine. European powers have claimed hinterland
territories by establishing their presence upon the African coast.
Kashmir
In the wake of an era where constitutional reforms are seen to occur with the
beacons of light that referendum and plebiscite are, Kashmir seems a blind
spot in the rationale and agenda of two states in the South Asian segment.
Fraught with what can best be explained as interests deterministic of
policies, it seems clear that both nation-states, India and Pakistan, have
agreed to disagree wherever Kashmir becomes the crux of their
negotiations. The people of Kashmir are evidently crusading for their right
to self-determination, and that has paved the way to the disruption of peace
in the region.
At the helm of affairs during the Partition of India and Pakistan, creating a
separate and independent India, and a separate and independent Pakistan,
the British accorded the catena of princely states the right to accede to either
entity carved newly out of the erstwhile sub-continent. The Kashmir dispute
dates back not to Kashmir's accession, but rather, to the Junagadh accession.
Junagadh was a province of Gujarat, headed by a Nawab with a Hindu
majority among the population. While the Nawab decided to accede to
Pakistan, India called dibs on Junagadh, contending that it had a Hindu
Majority while Pakistan was an Islamic Theocracy, and basing this on
geographical contiguity and terra firma, that Pakistan could obviously not
have one part of its state territory couched in Indian soil. Pakistan
countered, holding that the decision of the ruler of the princely state held
sway over all else, and rejected the terra firma contention stating that it
could administer the zone with marine ties despite its location in India.
Pakistan further contended that the decision of the princely state was
sufficient, in that it excluded all other considerations, such as the religious
identities of the majority of the population. Nevertheless, at the end,
Junagadh became a part of India.
Kashmir's story followed suit at the heels of Junagadh soon after. Maharaj
Hari Singh headed erstwhile Kashmir, which though headed by a Hindu
ruler, had a Muslim majority. He decided in favour of acceding to India. In
reply, Pakistan questioned the decision purporting a case of double
standards on part of India, for choosing to accept Kashmir as part of its
199

territory on the grounds that it rejected Junagadh's decision. It contended that

the majority of the populace was Muslim, and though India was not a
theocracy, the fact that Maharaj Hari Singh himself had ample records in the
history of his leadership that evidenced an intolerant policy filled with
atrocities and torture towards the Islamic segment of society. Nevertheless,
Kashmir joined India's cache of provincial states, and acceded to India.
Since then, Kashmir has consistently been the bone of contention between
both states. Differences between the states took on a new role as troops
were stationed on the borders of both states. Seeking to restore peace, in
furtherance of the objective to avoid war at all costs, the United Nations
Security Council issued Resolution 47, which called for peace to be
restored between the states.[873]
At the end of the debacle, both states had portions of Kashmir in their
hands- Pakistan occupied and India occupied Kashmir. India accorded
Kashmir a special status, under Article 370 of its Constitution, and
exempted applicability of its legislation by inserting the 'except Jammu and
Kashmir' clause in every piece of legislation. Although for the most part a
state of difference in opinion with underlying peace prevailed, a few
instances of exchange of fire across the border developed into skirmishes,
such as the 1947, 1955 and the 1971 wars. In 1989, armed insurgency
commenced in Kashmir, given that after the 1987 State election disputes
resulted in the legislative assembly forming militant wings after the election,
which played a catalyst for the Mujahadeen insurgency, which continues till
date. India's take on the militancy is couched in its claims that these
insurgents are the acts of Islamic terror outfits from Pakistan-administered
Kashmir and Afghanistan, all of whom fight to make Jammu and Kashmir
part of Pakistan. India contends that Pakistan is supplying munitions to the
terrorists, and training them in Pakistan, and also states that the terrorists
have been killing civilians in Kashmir, and committing human rights
violations, while vehemently denying that its own armed forces are
responsible for the human rights abuses. Countering the Indian claim, the
Pakistani government deems these insurgents as "Kashmiri freedom
fighters", and asserts that it offers only moral and diplomatic support to
these insurgents. However, somewhere during October 2008, Pakistani
President Asif Ali Zardari termed the Kashmir separatists as Terrorists in
an interview with The Wall Street Journal, a move that stirred up outrage
amongst Kashmiris, some of whom defied a curfew rule imposed by the
Indian Army, in a bid to burn his effigy.
Closer to a recent period of time, the 2001 Kargil war re-enacted the
erstwhile war scenario. For years together, both states have relentlessly
200

pursued amicable and peaceful settlement, and at various times, have both
had representatives meeting on the issue, but reach a deadlock each time.
Unfortunately, most such meetings have evoked lofty panegyric and leave the
world watching on tenterhooks as rhetoric after didactic rhetoric is
delivered, with no viable solution emerging.
India and Pakistan share ample camaraderie on many other fronts, bailing
each other out with sky-high sums of money when faced with natural
calamities, sharing turf and respect on and off the cricket pitch, and even
marriage across the borders, as was the most celebrated case of Sania
Mirza and Shoaib Malik. But Kashmir alone remains a blind spot where
amity and the tenets of peaceful cooperation are concerned. And who suffers
at the end of it all? That's right. The common man. As always. Thousands of
people are massacred at the sacrificial altar of hatred and revolt against
their divided status. Nearly hinging on statelessness, the populace suffers
under the brunt of divided opinion and the fecundity of militancy emerging
from the suppression of interests and the conflict of the simmering tensions.
Sixty odd years have gone by in the game of tug-of-war between both States.
Sixty odd years have gone by with the death-toll mounting. Sixty odd years
have gone by without a solution. And it's definitely high time to pin one
down.
Scholars world over have toyed with ideas aplenty, but all, though paper
tigers, lose ground on their impracticability and lack of tenability. India
giving Pakistan Kashmir may stir up protest from the Hindu quarters
considering that they will be a minority in an otherwise theocratic Islamic
majority, after being in a secular setting. Retaining the status quo will
obviously lead to a repetition of all that's been happening. Dividing
Kashmir is a likely viable option, but plenty of logistics such as the extent
and geographical demands would pave the way for more events of
ideological deadlock. Giving Kashmir in exchange for other territory, such
as, say, Sir Creek, would in all likelihood tilt the balance in favour of one
state than the other, keeping in mind the fact that the economic gain from
having both zones as part of the state are not equal. Leaving Kashmir as an
independent entity would virtually deal a death blow to the state, which
would need enough time to rehabilitate itself, and then to build relations
with the outside world. This is, of course, a proposition understanding that
though becoming independent as a state, Kashmir would have to depend on
its neighbouring states for plenty of things.
One unexplored suggestion that could produce far-reaching results, is to
allow both states to back off for a bit, while Kashmir rehabilitates itself
201

under the control of an independent third entity. And filling the shoes of this
independent third entity is the United Nations Trusteeship Council. A wing
of the UN constituted at its inception, the Trusteeship Council was devoted
to placing territories under the administrative control of uninterested states
until they were capable of taking the bull by the horns and standing on their
own feet as independent states. The Trusteeship Council is presently
defunct, but its services are necessary now more than ever, considering the
mushrooming of newer entities as states that face the difficulty of nonrecognition, and the number of states in dispute with one another in relation
to portions of territory embroiled in a boundary dispute such as the present
one.
In keeping with the fundamental norms of anarchy and balance of power that
international law and international relations are founded, and in
understanding that many states perceive the veto power -albeit now frugally
used- as redundant and seek to expand permanent membership in the
Security Council, the administrative responsibility need not be under the
thumb of another state. What could be done in the alternative, is the
constitution of an independent committee comprising of manpower and the
best of academic and juristic scholarship. Neither India nor Pakistan shall
play a role, so as to avoid the swaying of the natives. The committee could
work towards seeking to repatriate the civilians and put them back on their
feet and giving them back their normal lives. With their lives back on track,
the civilians can then be extended the olive branch with an active option to
choose the trajectory they aspire to traverse in the form of a plebiscite or
referendum. When the region decides for itself, the choice exemplifies itself
in allowing the civilians a chance to stay, or to move out.
This scheme of affairs would ascertain a fair choice without the hand of
either state influencing or colouring civilian thought. There seems no point
in the political bigwigs clamouring for all things in the best interests of their
people, while in the background, the very people are dying in large
numbers. It is time the states think in terms of what their people need,
instead of what they want. It boils down to a simple choice.
Kosovo
The Accordance with International Law of the Unilateral Declaration
of Independence In Respect of Kosovo,[874] was an application to the
International Court of Justice, in order to secure an advisory opinion by the
UN General Assembly, in pertinence to the 2008 unilateral declaration of
independence of Kosovo. The territorial expanse of Kosovo was the base
matter of the dispute between Serbia and the Provisional Institutions of Self202

Government of Kosovo. In all of the International Court's history, this was

the first case dealing with a unilateral declaration of independence.
On the 22nd of July, 2010, the Court delivered its advisory opinion, and by
a vote of 10 to 4 it declared that the declaration of independence by
Kosovo, dated 17th of February 2008, was not in violation of general
international law, since, it held, international law contains no prohibitions
on any forms of declarations of independence. Most countries of the world
already recognize Kosovo, all of whom welcomed the decision, deeming it
a unique case that does not set a precedent. The countries that do not
recognize Kosovo refuted the decision, while relentlessly asserting their
stance that they would not be recognizing Kosovo, since the ruling could set
a precedent rolling, thereby encouraging the practice of endorsing secession
and unilateral declarations in other places.
Kosovo had adopted its declaration of independence on 17 February 2008
in a meeting of its Assembly. It was, effectively the second declaration of
independence by the ethnic-Albanian political institutions, the first having
been proclaimed on 7 September 1990. There was no clear cut indication as
to whether the declaration was an official act of the Provisional Institutions
of Self-Government, but, the Court asserted in its decision, that it was not an
official act. This was a significant part in the factual matrix, given that the
Serbian argument hinged on the fact that Kosovo's Self-Government had by
far, transcended its authoritative limits. Serbia sought international
validation and support for its stance that the declaration of independence
was illegal at the International Court of Justice.
A cursory perusal of the decision would not really lead one to surmise that
the ICJ accepted the absence of a right to declare independence within the
ambit of the question it was required to answer. Despite the notions
conspicuousness by its absence, it is quite clear that the neutrality of
International Law in pertinence to unilateral declarations of independence
forms the very foundation of the advisory opinion. Nothing in International
Law so much as purports that a declaration of independence is not
precluded from securing legality on account of its unilateral nature. In
support of this line of thinking, the court mentioned that the illegality
accorded to certain other independence declarations was not due to their
unilateral nature, but was essentially couched in the fact that they were
embroiled in a violation of jus cogens. The crux of this tenet is that the
international legal regime was essentially neutral to the unilateral nature of
declarations of independence. This is not to say that the issue is free from
any form of controversial debate, but that there happens to be a likelihood of
203

a non-state actor being in contravention of the legal requirements, since the

entity declaring independence may not quite be a state just yet. Drawing a
theoretical argument, it is clear that this line of thinking echoes the dictum of
the Security Council in the context of South Rhodesia, the South African
Homelands and Northern Cyprus. As a natural corollary, it stands clear that
a state created in contravention of jus cogens, is no state at all, and in turn,
other states are obligated to withhold recognition. This has been recorded
under Articles 40 and 41 of the ILC Draft Articles on State Responsibility.
Relating all of the parameters in this matrix to the case at hand, one can
clearly see that the reasoning of the court is that Kosovo's independence has
not run into troubled waters since it is not in contravention of any norm of
jus cogens. Clearly, it has been accepted that self-determination underlies
the declaration of independence in cases of this sort. A Unilateral
Declaration of Independence depicts a situation where an entity seeks to
emerge independent of its parent state, without consent from the latter, and is
therefore driven to assert its independence by declaring so, on its own. If
such a declaration meets with acceptance from the International Community,
it is tantamount to the creation of a new state. However, this is not a case of
legalizing a territory or a title to it, but nevertheless is one where a new
state emerges, creating sufficient political and legal consequences, all of
which bear links to territory.
As far as International Law is concerned, for self-determination, it is
necessary that the modification of the legal status of any territorial expanse
must occur entirely in accordance with the will of the people, which in turn
must be exhibited by the representative entities of the people. Where nonrepresentative elements take it upon themselves to declare independence, it
is very well established that their conduct holds no value in international
law. That facet in the present matter is not an issue, considering that the
Court has arrived at a conclusion that the declaration of independence
emanated from those pockets of populace that represented the generic pulse
of society.

Loss of Territory
It is clear, that when one state acquires territory, another state loses it.
Therefore, it would be correct to understand that the modes of losing
territory, is the exact opposite of the modes of acquiring territory. When a
treaty of cession orchestrates the transfer of territory from one state to
another, it automatically implies a loss of territory for the transferring state.
204

In such instances, there should be both, the factum of the renunciation of

sovereignty, and, the animus to fortify its actions. All of this is common to
all modes of territorial acquisition.
The Polar Zones
Aside of territorial rights over its own territorial expanse, some states may
exercise certain powers of regulation and management over other areas,
while sharing such powers with other states. Or, in the alternative, such
states may have a recognized interest in such areas. It is also possible for
individual states to have exclusive, but limited powers of jurisdiction over
certain areas of a communal nature, such that these rights and powers are
exercised in tandem with those of other states. No state can be said to have
actual rights of sovereignty over such areas, which are called res communis
or communal territory. The territories of such nature cannot be acquired by
any state, and is to be used exclusively for the common heritage of mankind.
Antarctica
The Antarctic zone, or Antarctica, is predominantly an area interspersed
with ice and frozen land. About seven states have raised claims of
sovereignty over Antarctica, namely, the United Kingdom, Argentina, Chile,
France, Australia, New Zealand and Norway- out of which the territorial
claims of three states overlap. Antarctica has now been known to possess
varied valuable reserves of natural resources, namely, coal, oil, gas and
precious metals. Though the present likelihood of commercial exploitation
of the resources in Antarctica is remote, there will be a time when states
would look to the Antarctic for new supplies of non-renewable minerals.
Assertion of state sovereignty in a bid to exploit the zone for commercial
use would not bode well, since states at large accept that Antarctica as a
region is not open to claims of sovereignty. A uniform sharing based
exploitation of the potential wealth of the area has slowly been deemed
acceptable, where states have begun to assert that Antarctica, like the Deep
Sea Bed and outer space, would be construed as the common heritage of
mankind. At all times, however, it is very important to understand the
ramifications of commercial exploitation. If states were given the green
signal to go on untrammeled, in their pursuit of commercial exploitation of
the zone, it would definitely destroy the system as it exists presently.
Further, even in the course of exploitation, if left without a governing
system, there could be instances where more developed states, perhaps out
of superior technology, or perhaps out of mere superiority in the world
order, would end up gaining more out of the zone, as opposed to the more
nascent segments of the developing states. This augments the need for
205

sufficient international controls, as also a well-regimented system of

commercial exploitation that sustains the environmental structure, and
preserves the resources in its true form.
In 1959, a treaty governing Antarctica and other states in their pursuit of
dealing with Antarctica had come into place. The idea underlying the treaty
was to govern all those states that had sovereign interests in Antarctica, and
it sought to recognize the importance of environmental protection and
preservation, and also asserted that Antarctica would be used only for
peaceful purposes, thereby ruling out the fortification of any states military
prowess. The treaty also ensured the laying down of a moratorium of sorts,
in black and white, banning all kinds of claims of sovereignty, and
buttressed this rule with Article 4, which lays down that no acts or activities
occurring while the treaty is in force, would be accepted as constituting a
basis for asserting, supporting or denying a claim to territorial sovereignty
in Antarctica, or, create any rights in Antarctica. The treaty came into force
in 1961, from which point all claims over Antarctica in a bid to exercise
sovereignty were suspended. There are 46 member states, with 28
consultative, and 18 acceding. Of these, the consultative, i.e., those who
vote, members include the seven states that claim sovereignty over portions
of Antarctica as part of their national territory. The remaining 21
consultative states are non-claimant nations till date, who have either not
recognized the others claims, or have not stated their positions. The
consultative parties meet every two years, and make recommendations
under the treaty, which in turn deal with various matters and may have
binding value as far as the Consultative Parties are concerned. There hasnt
been any mention of a formal duration for the treaty, and there is room for
review at any point of time, with the end of thirty years. This provision had
originally paved the way for fears that the regime would cease in 1991,
however, from 1982 onwards, the Consultative Parties have been making
sincere efforts to continue the progress made by the Treaty since its
inception, by meeting regularly and discussing the benefits of continuing the
regime. As of today, the treaty is still in force, and has renewed vigor in its
application, with an additional Protocol on Environmental Protection.
The treaty regime has evolved with time, and has emerged as one of the
most important regimes till date. In November 1988, the Convention on the
Regulation of Antarctic Mineral Resource Activities, known as the
CRAMRA, came into place and was left open for states to sign. It was for
the sake of establishing a regime for mineral resource activities. Though it
encouraged a new trend where a couple of states were seen to have been
prepared to relinquish their sovereignty based claims if the regime was
206

successful enough, it eventually became defunct, since it did not sustain the
interest of its members as far as environmental concerns went.
Subsequently, ideas to convert Antarctica into a wilderness reserve, with a
ban on all forms of mining and exploitation, were brought to fore by France
and Australia at a meeting of the Consultative Parties in Paris, in 1898. This
rule has found personification in the Protocol on Environmental Protection
to the Antarctic Treaty that was finally agreed to, by the Consultative
Parties. The Protocol, which has now entered into force, indicates some sort
of a compromise among those states that aspire to pursue the rules of
Mineral Convention and those states that seek to propose an absolute
moratorium on the exploitation of Antarctica. All activities in relation to
mineral resources, with the exception of scientific research, are prohibited
under Article 7 of the protocol. Article 25 encourages a modification of the
terms, either by way of deploying the special procedure under the Antarctic
Treaty itself, or, by way of a review conference about 50 years from the
Protocols entry into force. The idea, thus, is to ensure prohibition of mining
for at least 50 years from the time the Protocol comes into force.
With the protocol in place, one can confirm that there is quite a tangible
reduction in the likelihood of commercial mining in Antarctica. Sweeping
changes have been incorporated in the municipal realm as well, with the
UK, for example, enacting the Antarctic Act 1994, making all the requisite
changes to its national law, as are required to ratify the protocol. However,
there is still merit in the UK/USAs objections to bringing in the wilderness
reserve status for Antarctica. They contended that commercial mining in
Antarctica was, in many ways, inevitable, and it was only a matter of time
before it happened. They asserted that if there is a proper regime in place,
then there would be a definite reduction and perhaps a complete end to any
destructive activities.
The protocol is a rather appreciable development, although it does not quite
affect the legal claims of states in abeyance of the Antarctic Treaty. The idea
is to encourage the perception of Antarctica as an integral part of the
common heritage of mankind, and to avert any possible destruction to the
environment.
The Arctic Zone
The Arctic zone comprises of frozen sea mass. Isolated islands exist, some
of which have been subjected to claims of sovereignty by a few states such
as Denmark and Norway. A greater part of its area is composed of shifting
pack ice, of a permanent character. A couple of states, for instance, Russia
and Canada, have claimed sovereign rights over parts of the frozen sea
207

mass, and these claims have been resisted by a couple of other states, such
as Norway and USA, purporting that the Arctic sea mass is susceptible to
the same legal status as the High Seas. Presently, however, there is some
measurable difference of opinion as regards the status of the Arctic.
Antarctica has a treaty regime, which the Arctic lacks. This has, perhaps,
been on account of the fact that there are frugal resources in the Arctic.
Albeit wielding considerable military value, most states havent ventured,
perhaps on account of maintaining their international responsibility towards
a peaceful system.
Stepping out of the Territorial regime: External
Territorial Rights
As already explained, a state has exclusive right over its own territorial
expanse. However, this is not all. States can enjoy a certain measure of
territorial rights, over those of another state, in the form of servitudes and
leases. These rights are similar to the accepted rules of easements and
leases in municipal law, and these rights are real rights, i.e., rights in rem, in
that they run with the territory, considering that the change of hands with
regard to the territory in question does not affect the right over it. Such
rights are often created by way of a treaty or a bilateral agreement.
Servitudes
Servitudes refer to exceptional restrictions, as imposed by a state over
another, through a treaty, on the territorial sovereignty of a state, whereby
such territory is put under the conditions or restrictions, or the rights of the
user state, serving its own interests or serving the interests of a non-state
entity. The right created therein is a right in rem, and is enjoyed by the userstate, i.e., the praedium dominans not in personal capacity, but in capacity
as the owner of the land that belongs to another state, i.e., the praedium
serviens.[875] A right of servitude runs with the land, since they bind all
successors to the titular rights with respect to the territory. However, merely
because there is a servitude permitted by one state for another to use, it does
not imply any compromise on sovereignty whatsoever.[876] States have
been known to grant rights of servitude to other states, such as perhaps, the
right to fish in the maritime belt, the right to navigate through national
waterways, the use of ports, the use of an airfield for any related facilities.
While it is indeed true that these rights are necessarily in rem, they may be
in personam, too, in that they can be abrogated by the granting State, by
snapping ties as far as the relevant treaty is concerned. In principle, the
general test of an international servitude is that it should be able to survive a
change in sovereignty of either state involved.
208

In the North Atlantic Fisheries Arbitration,[877] the United States

asserted that fishery rights were created in favour of its inhabitants, off the
Newfoundland coast in 1818, by way of a Treaty with Great Britain, and
that it constituted a right of servitude. The contention was rejected, with the
observation that a servitude under International Law warranted an express
grant of a sovereign right, and involved an analogy to the relation of a
praedium dominans and a praedium serviens. What happened in the case
was, the Treaty of 1818, allowed one state to grant the other a liberty to fish,
which in turn was not a sovereign right, but only an economic right granted
to the inhabitants of the other state. Furthermore, the Treaty of 1818 did not
prevent the British government from exercising its rights in making
regulations limiting the fishing rights of all persons including the inhabitants
of the United States. This case marked a jurisprudential hallmark of sorts,
by differentiating economic rights and sovereign rights. The grant of
economic concessions to States do not normally grant rights in rem of an
irrevocable nature by the grantor State. Taking up cudgels in favour of
Britain, the court relied on inter-temporal law, and asserted that there was
no evidence to purport that the American and British Statesmen were
conversant with the quintessence of the doctrine of servitude in 1818, i.e., at
the time of the Treaty.
Subsequently, in the S. S. Wimbledon Case,[878] the United Kingdom
asserted that the right of passage through the Kiel Canal, as was guaranteed
under Article 380 of the Treaty of Versailles, which required that the canal
and its allied approaches ought to be maintained free and open to the
vessels of commerce and war, of all nations at peace with Germany, on
terms of equality, was a servitude binding upon Germany. The Court,
however, ruled that as under Article 380, the canal had attained the status of
an international waterway, intended to provide under treaty guarantee easier
access to the Baltic for the benefit of all nations of the world. The Court did
not express a definite view on the question of servitudes, and instead opined
that the existence of servitudes in the domain of international law
questionable. However, the Right of Passage over Indian Territory Case,
[879] servitudes were accepted albeit not invoked in the Portuguese claim
for a right of passage through Indian territory between the Portuguese
enclaves of Daman and Diu and Nagar Haveli. Originally granted by the
Maratha Rulers, the right was later accepted by the British Indian
Government by a treaty and continued in India even after independence.
While the rights were accepted, the Court did not deem them servitudes, but
held Portugals claim as part of a custom. The Court went on to abridge its
decision by stating that the right was not applicable to armed forces, police
209

and armaments, and was subject to the control and regulation by India. This
ensured that it could not quite be deemed a servitude in the strict sense of
the term.
Servitudes may be created in a bid to benefit a community of states, as was
seen in the Aaland Islands case,[880] where Sweden argued that Finland,
in its capacity as a successor to Russia, was bound by the 1856 General
Treaty of Peace, which in turn created a servitude. The International
Commission of jurists reported the issue, and went on to assert that the
existence of international servitudes was not admitted.
Leases
Leases of territory by one state to another under International Law resemble
the leases of land by one party to another under Municipal Law. However, it
is different in that there is no binding effect of the private law of one, upon
the other. A lessee acquires control and sovereign rights over an area
subject to dominion of another state without resorting to annexation. After
the expiry of the term of the lease, the sovereign rights over the region revert
to the lessor state. In the 19 Century, China leased several portions of its
territorial expanse to western powers while retaining its sovereignty- Hong
Kong went to Great Britain by the 1842 Nanking Treaty, Kowloon followed
suit by the 1860 Peking Treaty. Leases, in the present day, are being actively
created for different purposes, ranging from ports for transit, to missile
tracking stations. Most leases are accorded perpetuity, which oftentimes
brings to fore the question as to whether it constitutes a real right under
international law, capable of surviving changes in sovereignty.
th

210

Chapter 9- Air and Space Law

Air Space and the Laws governing it- Essaying the
Evolution
Airspace above states and territorial waters, and their status have been
discussed over the years, with different theories and ideals, from as early as
the period before the First World War. Between 1900 and 1914, a whole
cache of academic opinions came to be expressed, each purporting a
different ideology on the status of airspace under International Law. One
view perceived airspace as being absolutely free for use, without any
restrictions by way of sovereign rights. Another point of view recognized
that in terms of an analogy with territorial waters, a portion of territorial
air attached to the state, followed subsequently by a higher free area. A
third point of view construed that all the airspace above a state was within
the ambit and control of the states sovereignty. A fourth viewpoint indicated
a modification of the third approach, by asserting that there was a right of
innocent passage over the airspace of every state, for any civil air vessel
belonging to a foreign state.[881] The most well-known face off on
scholastic perception on theories governing airspace was between the
British concept of sovereignty, and the French idea of freedom of airspace.
[882] However, it was a generally agreed notion that the airspace above the
high seas was terra nullius, and was open to all states to access.
With the outbreak of the First World War, this point of view changed. With
1914, it became clear that states would have to be content with nothing less
than absolute sovereignty over their airspace, since the security issues
emanating from the use of airspace without sovereignty-based restrictions,
were plenty. With tremendous potential for aerial warfare, there were too
many concerns relating to the likelihood of bombing and reconnaissance, as
were seen all through the First World War. Neutral states were exceedingly
insistent on preserving their right to prohibit any foreign aircraft from using
their airspace, and to prevent all forms of aerial warfare over their
airspace. States were evidently not willing to settle for anything less than
complete sovereignty rights over the stretch they deemed as their airspace,
and this paved way for a new norm of customary law to such effect. The
211

idea underlying the approach that emanated therefrom, was the extension of
state sovereignty into airspace. It was an accepted precept from the
defenses ideals, and was also acceptable for states who were keen on
evolving a system of regulating flights over national territory.[883] The rule
has been, since, that an aircraft of one state shall have a right to fly over the
high seas, but not over the territorial seas of another state.[884]
Subsequently, the 1919 Paris Convention for the Regulation of Aerial
Navigation recognized the full sovereignty of states over the entire column
of airspace above their landmass and their territorial waters.[885] The rule
has been put into writing in Article 1 of the 1944 Chicago Convention on
International Civil Aviation,[886] stating that every state has complete and
exclusive sovereignty over the airspace above its territory.[887]
This being a given, it is clear that international law rules in congruence with
sovereignty and the issues related therein, are equally applicable to
airspace as they are applicable to land and sea under the sovereignty of a
state. This was exposited in the Nicaragua Case,[888] where the ICJ noted
that the principle of respect for territorial sovereignty was directly infringed
by the unauthorized flight by an aircraft belonging to, or under the control of
the government of another state, over a states territory by traversing its
airspace.
Originally, the idea was to ensure unlimited extent of sovereignty, in that
sovereign rights of a state were allowed to be exercised to an unlimited
height into airspace. This was better known as the rule of usque ad coelum.
[889] However, this has long been subject to the restrictions imposed by the
law of outer space. It is a rather flagrant breach of international law, when a
state violates the airspace of another state. Between 1950 and 1960, several
aerial incidents occurred, when a couple of American military aircrafts
were attacked, or forced to land, or were shot down, and their crews were
interned by Hungary, the USSR and Czechoslovakia.[890] The United States
interjected that the use of force was antagonistic to international law, since
the aircrafts were either flying over international waters, or had
inadvertently set foot into foreign airspace. The ICJ dismissed the American
cases against all the states that refuted liability, since there was no
acceptance of jurisdiction by the respondent states. Subsequently, the Court
denied jurisdiction in the cases brought in by Israel, the United States and
the United Kingdom, against Bulgaria, for having shot down an Israeli
aircraft which was a regular commercial flight, between Austria and Israel,
carrying passengers of several different nationalities.[891]
Later in 1960, a United States U2 reconnaissance aircraft was shot down
212

over the Soviet Union. This resulted in the cancellation of a summit

conference with the United States, by the Soviet Union, in a bid to protest
against a violation of its airspace.[892] It is noteworthy that the United
States did not raise any qualms about the Soviet Unions act of shooting
down the U2. This raised a new question, as to whether states had an
untrammeled right to attack an intruding aircraft under all circumstances. As
put by Lissitzyn,[893] In its efforts to control the movements of intruding
aircraft the territorial sovereign must not expose the aircraft and its
occupants to unnecessary or unreasonably great danger- unreasonably
great, that is, in relation to the reasonably apprehended harmfulness of
the intrusion. The principle is a flexible one, giving room for actions to be
taken in the light of legitimate threat to its security. It also warrants that a
warning to land, or demanding a change of course needs to be issued prior
to attacking the aircraft, with only two exceptions that the aircraft constitutes
a grave and imminent threat to the security of the state, and that it is
impracticable to actually extend such a warning. This is a description of the
position of the law in situations relating to military aircrafts entering into the
airspace of another state. However, there is still active debate in the context
of civil aircrafts that enter into the airspace of another state without such
other states consent. Some states encourage the military approach to be
applied even to civil aircrafts, while some other states in conjunction with
the International Civil Aviation Organization (ICAO), a specialized agency
of the United Nations do not wish to follow the ideology, since they believe
that a civil aircraft ought never to be attacked, whatever be the
circumstances. What can be done, they suggest, is to order such civil aircraft
to leave, or to land, and the state whose airspace has been entered into can
seek to protest to the state with whom such aircraft is registered, if its
protest results in no consequential action. At all times, however, it is
necessary to remember that merely because trespassing civil aircrafts are
not to be attacked, there is no automatic right for such civil aircrafts, to
trespass.
In 1981, the International Civil Aviation organization brought a
recommendation to its members, warranting that intercepting aircrafts
should refrain from the use of weapons in all cases of interception of civil
aircrafts.[894] After this, in 1983, the Soviet Union shot down a South
Korean civil aircraft, which had entered into its airspace. The action was
condemned in the Security Council, which also went on to reaffirm the rule
that international law prohibits acts of violence posing a threat to the safety
of civil aviation.[895] The rule purported therein found support in several
213

states and their ideologies.[896] The Soviet Union, however, did not assert
that it had an unlimited right to take action against an intruding aircraft, but
went on to submit that it had mistaken the South Korean aircraft for a United
States military aircraft.[897]
The next development in the field was in 1984, when the Assembly of the
International Civil Aviation Organization adopted an amendment, namely,
Article 3bis, to the 1944 Chicago Convention on the International Civil
Aviation. The article stipulates that every state, in the course of exercising
its sovereignty, is entitled to require the landing at some designated airport
of a civil aircraft, flying above its territorial expanse without authority. At
the same time, however, it makes sure to assert that the states ought to
refrain from resorting to the use of weapons against civil aircrafts in flight,
and in events of interception, the lives of people on board and the safety of
the aircraft ought not to be endangered. Another event worthy of mention in
relation to Air Law, is the war between Iran and Iraq.[898] On 3 July,
1988, the American warship, in an engagement with Iranian gunshots in the
Persian Gulf, under the belief that it was being subject to attack from air,
ended up shooting down the civilian Iran Air Flight 655, in the process
killing nearly three hundred passengers from six countries and the crew
members on board the flight. The United States did not admit to its liability
at any point, but did, later, offer to pay ex gratia compensation to the
families of the victims, but the offer was declined by Iran, which in turn
went on to file a claim before the International Court of Justice.[899]
Eventually, the two states took up the claims in the Iran-United States
Claims Tribunal, and the United States settled Irans claims.
Following this event, the Cuban military aircrafts shooting of two civilian
aircrafts registered in the United States led to another condemnation by the
UN Security Council in 1996. What ensued next were a bunch of sanctions
against Cuba under the Cuban Liberty and Democratic Solidarity
(Liberated) Act, 1996, also known as the Helms-Burton Act.
The Legal Framework Today-The Chicago Conference
and Conventions
The present legal regime dealing with Airspace evolved from the 1944
Chicago Conference, and the slew of conventions emanating therefrom. The
Chicago Convention on International Civil Aviation,[900] does not apply to
any form of state aircrafts that are deployed for military or police use, or
even customs requirements, as explained under Article 3. Article 1 mentions
that there shall be complete and exclusive sovereignty over the airspace of
states. Article 6 reinforces this rule, by purporting that no scheduled
rd

214

international air service may be operated over or into the territory of a

contracting state without that states special authorization to such effect.
States have also qualified their sovereign rights, by agreeing under Article 5
that the aircrafts of other contracting states not engaged in scheduled
international air service, shall have the right to make flights into or in transit
non-stop across their territory, and to make stops for non-traffic purposes
without obtaining prior permission. The right is, of course, subject to the
right of the state flown over, to demand a landing. This marks an exception
to the rule under Article 6 of the Convention, considering that states have
oftentimes required that prior permission be obtained, before charter flights
come over into their territory, even though it is true that such flights do not
quite come within the ambit of article 6 and within the definitional ambit of
scheduled international air services as put forward by the Council of
International Civil Aviation Organization, in 1952, thereby marking another
milestone indicating the modification of a treaty provision by state practice.
[901]
To be able to identify an aircraft as belonging to a particular state, Article
17 purports that aircrafts shall have the nationality of the state in which they
are registered, although the conditions for registration fall within the realm
of domestic law, and vary from state to state, as explained by Article 19.
The next piece of jurisprudence in the list of laws governing airspace, is the
1944 Chicago International Air Services Agreement. It deals with all forms
of scheduled international air services, and stipulates that all the states party
to the agreement recognized the privileges of the air services to fly across
their respective territories, without landing, and, to land for non-traffic
purposes. The agreement was also named the two freedoms agreement. It
was later augmented by the five freedoms agreement, or the 1944 Chicago
International Air Transport Agreement. The second agreement added a
catena of rights and privileges pertaining to the acts of taking on and putting
down passengers, mail and cargo in the territories of state parties. The
agreement, however, did not see many states ratifying the same. The United
States withdrew from it in 1946 on account of the fact that there was far too
much commercial value that had been granted away, which, at present, holds
frugal value.[902]
What regulates the present system, instead, is a tightly woven weft of
bilateral agreements, between individual states for the sake of traffic rights,
in addition to the two freedoms which govern transit. States have been
known to indulge in multiple rounds of negotiation with a view to arrange
for the practical operation of the remainder of the three freedoms. This is
215

indicative of the extent of commercial and strategic importance attached to

them. Now, with the advancement of technology and the advent of modern
mechanisms in air travel, and with the stupendous increase in state owned
and private airlines networks, there has been a rather heavy burden on this
prevailing system.
The Conference followed the 1919 Convention, reaffirming some of its core
principles. The sovereignty of states over their airspace; the rule of seeking
prior permission from states to operate scheduled international air services
using their airspace and the right to carry traffic between different points
within the state territory were among those principles that were reaffirmed.
A large part of the foundation laid by the Chicago Conference was, in many
ways, was dented by the catena of bilateral agreements entered into by
states with one another. Nevertheless, it still holds good, since it was
fundamentally based on the Bermuda principles, which essentially declare
that air transport facilities available to the travelling public ought to relate
to the needs of the public and enunciates the fact that there should be equal
opportunities for the carriers of the two concerned nations, in order to
operate on any route as between their territorial expanse.[903] It also makes
clear that in the course of operation by air carriers of the governments of the
trunk services as explained under the annex in the agreement the interests of
the other governmental air carrier ought to be taken into due consideration,
in order not to disrupt the services provided by them. All designated air
carriers providing services under the agreement will pursue, as their main
objective, the providing of capacity sufficient to the demands of traffic
between the countries of which such air carrier is a national, and that which
is its final destination. The general principles of orderly development as
subscribed to by both concerned states govern the right to embark and
disembark upon such services, to and from third states at specified points on
the routes specified in the agreement under its annex. Such right is also
subject to the principle that capacity should bear relation to the traffic
requirements between the country of origin and country of destination, to the
rules and requirements of through airline operation, and to the traffic
requirements of the area through which such air carrier passes, after taking
into consideration the local and regional services. The parties involved are
also under an obligation to engage in consultation as frequently and as
regularly as possible, in a bid to retain close collaboration, so as to ensure
continued implementation of the provisions of the agreement.[904]
The Bermuda agreement did not find approval for long, in that the UK had
denounced the same, in 1976, claiming inequity in share in the North
Atlantic traffic, as the reason. In 1977, a new agreement was signed with the
216

USA, by the name of Bermuda II, which reaffirmed the original tenets of
Bermuda I, and moved on to lay down newer regulatory techniques.[905]
This time around, the British airlines were permitted non-stop services,
along with the freedom to combine the points in the US, on each route they
sought to choose. Excess capacities and the problems arising therein came
to be governed by way of a consultative mechanism, and a Tariff Working
Group was also created towards this end.[906]
Another productive angle to the Chicago Convention was the creation of the
International Civil Aviation Organization. It was created as a specialized
agency of the United Nations, based primarily in Canada. The purpose of its
establishment was to create a mechanism warranting the governance of
technical and administrative co-operation between states, in matters
governing civil aviation.[907] The core aims of the ICAO are to ensure the
persistent development of principles, rules and techniques of international
air transport.[908] The entity wields a plethora of powers, of technical,
legal and administrative nature, and exercises them through machinery such
as the Assembly, a Council and a few other bodies based on the necessity of
the Organization. The organization has been catalytic in giving the laws
governing airspace personification, by putting them down in instruments that
have been adopted by states from time to time.
Aside of the International Civil Aviation Organization, there is also an
International Air Transport Association, comprising most of the airline
companies and operators. The members act in consonance with one another
in a bid to establish a uniform system of fares and tariffs, all subject to
governmental approval. The forum also functions as an avenue for the
discussion and for dealing with issues such as hijacking and attacks upon
civil aircrafts.
The Warsaw Convention regime
With the steady increase in civil airlines in use, there has also been a rather
considerable increase in the extent of cases involving the liability of civil
airline companies for the death and injury suffered by passengers on board
these airlines. The Warsaw Convention for the Unification of Certain Rules
relating to the International Carriage by Air, 1929, was instrumental in
establishing upper limits for such liability, and also dealt with other allied
issues in light of responsibility and insurance. Modified by the Hague
Amendment, 1955, the amendment so made was not approved of by the
United States. As a consequence, a subsequent agreement was signed in
Montreal, in 1966, in a bid to raise the limits of liability as far as airlines
flying in, or to the United States.
217

The convention, under Article 20, stipulates that the carrier is not to be held
liable if it is proved that such carrier and the agents have taken all the
necessary measures to avoid damage, or, that it was absolutely impossible
for such carrier to take such measures. The burden of proof is squarely on
the carrier, and the threshold, or the expected standard for such proof, is
rather high.[909] The limits to the carriers liability are laid down under
Article 22, as defined in gold French Francs.[910] Article 25 purports that
liability is unlimited under article 25 if damage ensues from the willful
misconduct of the carrier or, of one of his agents.[911] With the entry into
force of the Montreal Additional Protocols, 1975, there is more support lent
to this regime, starting with the substitution of the Special Drawing Rights
for the gold francs. Subsequently, the Guatemala Protocol, 1971 sought to
bring in absolute liability with increased limits in passenger and baggage
instances. The ICAO Council, through its Legal Committee, negotiated a
plan to encourage states to sign and ratify the Montreal Protocols in 1990.
Nevertheless, the condition of airlines liability in most places aside of the
United States of America is best deemed as being below satisfactory.
Oftentimes, thus, those seeking to make claims have been driven to sue the
manufacturers of the aircraft, and not the airlines itself. This is a generic
description, as the specifics are largely preponderant on the laws of the
states, and the extent of compensation that is permitted as per their
respective jurisdictions.
The Turkish Airlines incident in 1974, is the best example of the position of
law on the issue. The Airline built in America, crashed near Paris, resulting
in the death of over three hundred. The incident threw a couple of issues in
the way of the law, steadfast in emphasizing the extent of injustice the
situation portended, in the light of the quantum of compensation that the
passengers and their bereaved families were given and in turn, ought to have
been given. The amount of compensation was severely limited by the
mandate of the Warsaw Convention, leading to the passengers seeking
claims against the manufacturing entity, before the American Courts. Finally,
a Californian court awarded them the damages they were seeking.[912]
On account of the limited liability framework, there were several instances
of individuals seeking compensation by way of approaching other means
outside of the Warsaw Convention. In Ex Parte International Air
Transport Association,[913] there was a question of compatibility between
the European Communitys Regulation 2027/97 that stated that there shall be
no limit on the liability of carriers, and the Warsaw Convention as was
given personification in the UK legislation called the Air Act, 1961. The
Court ruled that the Warsaw Convention as personified in the Air Act, 1961,
218

had precedence over the former, since it was essentially established in a bid
to assure uniformity in the legal system, and had also been the only
legislation that had borne remedies for the passengers of air carriers.[914]
There were enough drawbacks and complications in the system, which was
offset by the employment of many agreements and arrangements with
carriers, limiting the liability under the convention.
The 1999 Montreal Convention came in place of the Warsaw Convention,
with a view to doing away with the host of voluntary agreements between
states. Article 21 of the Convention endeavours to completely do away with
all forms of arbitrary limits on air carrier liability in relation to accident
victims. A carrier can avoid liability for the entire quantum of damages only
if it is proved that it was not negligent, or, that a completely different entity,
namely, a third party, was responsible for the damage caused. Carriers are
deemed to be held strictly liable for the first 100,000 Special Drawing
Rights of the proven damages for each passenger.[915] A carrier, therefore,
may not quite avoid liability for the amount, even if there is proof that the
harm ensued not out of negligence on its part. The rule of strict liability
mentioned herein comes only with one exception, namely, contributory
negligence as under Article 20.
Hijacking and Terror Attacks in
Airspace
Another issue most jurisprudence seeks to tackle, in the context of air law,
is that of hijacking. Airspace has now come to play a rather integral in
world communication and infrastructure building. Hijacking and terror
attacks are a looming threat to the peace and freedom of airspace. This has
led to the adoption of several conventions penalizing and outlawing any
form of hijacking, and bringing in a scheme of enforcement measures. It is
possible, however, as put in Shaws words, that the law against hijacking
would begin to be treated as an equivalent to the legal regime governing
piracy on the high sea.[916] In dealing with hijacking, the Montreal
Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 1971 deems the performance of an act of violence against a person
on board an aircraft in flight, where the act is likely to threaten the safety of
the aircraft as being an offence. Similarly, it treats the destruction of an
aircraft in the course of service, or damaging it in order to render such flight
unsafe or impossible, as an unlawful offence. The same is construed of an
act sought to destroy, damage or interfere with the operation of air
navigation facilities, and the communication of false information knowingly,
if the same is likely to endanger the aircraft in flight. The Montreal Protocol
219

of 1988 augmented the ambit of the convention, and brought in acts of

violence against people at an airport serving international civil aviation
causing thereby, or likely to cause serious injury or death; and also the
destruction or serious damage of the facilities of such airports and aircrafts
that are not in service, and disrupting the airport services.
Jurisprudence is full of events indicating the claims for damages in the wake
of terror attacks. Starting with Krystal v. BOAC,[917] where the terrorist
attacks warranted the recovery of mental anguish emanating from a hijack
under the Warsaw Convention regime, as augmented and modified by the
1966 Montreal Agreement. Subsequently, an incident occurred where the air
carrier was held responsible for the damage suffered by passengers on
account of a terror attack, at the departure terminal of the airport in Athens.
[918]
Aside of the aforementioned legal instruments, the Rome Convention on
Damage Caused by Foreign Aircrafts to Third Parties on the Surface, 1952
and the Montreal Protocol of 1978 are also noteworthy. Both these permit
the payment of compensation upon the submission of sufficient proof of only
the damage by an aircraft in flight, or, by any person or equipment falling
from such aircraft in flight. The liability is pinned on the operator of the
flight, which, invariably, is the registered owner of the aircraft. The heavy
liability imposed herein seems to be a dissonance, considering that only few
states have ratified the same. Strict liability underlies the legal regime,
therefore, there needs to be a clear cut link between the damage, and the act
that has resulted in the injury itself.
In addition to the aforementioned regime on hijacking, there has also been a
convention denouncing the acts of hijacking, taking hostages and terrorist
bombings, with the advent of the Convention on Offences Committed on
Board an Aircraft, 1963, the Convention for the Suppression of Unlawful
Seizure of Aircraft, 1970, and the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, 1971. This marks the
development of law way before the worlds biggest Airspace infringementcum-terror attack, the attacks on the World Trade Centre, of September 11,
2001. These conventions operate on the basic tenets of quasi-universal
jurisdiction, and create a weft of International obligations that signatory
states are bound to obey.[919]
Aerial Intrusions and attacks on Civilian
Aircrafts
It is an established rule that states have sovereign rights over their airspace.
As a consequence, therein, any intrusion not having legal sanction, nor
220

having prior permission of the state involved, amounts to an intervention. In

the Nicaragua Case,[920] the ICJ held that the territorial sovereignty of a
state is directly infringed by the act of an unauthorized flight of a states
aircraft over another states territory. Such instances justify a demand to
land, or even interception. Over the years, there have been plenty of
incidents since as early as 1945, where aerial intruder aircrafts were
destroyed. The entry of the El Al Israel Airlines into Bulgarian airspace
was intercepted, and the flight was shot down by Bulgarian warplanes. The
case taken up before the International Court of Justice was eventually
dismissed on account of lack of jurisdiction.[921] Nevertheless, the Israelis
submitted that a state at the receiving end of an aerial intrusion could work
in either or both of two ways, whereby they primarily ought to take the
initiative of informing the intruder of their perpetration of such intrusion,
and secondly, to initiate diplomatic action.
Later, in 1973, Israeli airliners shot down a Libyan aircraft, which had
strayed considerably into the airspace of Israel-occupied Sinai, contending
that Israel had warned the Libyan aircraft to land, which in turn had failed to
comply with the order. Nevertheless, after the investigation embarked upon
by the Council of the ICAO, Israels act was condemned, on the ground that
such actions constituted a grave danger to the safety of international civil
aviation, and that such acts constituted a flagrant violation of the rules under
the Chicago Convention.[922] In 1983, a Korean Airlines aircraft was shot
down by the Soviet jets, killing nearly 300 people. The aircraft had strayed
into sensitive Soviet airspace.[923] The Security Council sought to express,
by way of a resolution, the reaffirmation of the stance that international law
prohibits all acts of violence against the safety of international civil
aviation.[924] However, the USSR vetoed the same. The ICAO, in a couple
of weeks from the incident, directed the need for an investigation, and
sought to require a review of the Chicago Convention and all the allied
documents, by the Air Navigation Commission, in a bid to prevent a
recurrence of such an event. With the report in place, the ICAOs council
adopted a resolution, vociferously condemning the act of shooting down the
Korean aircraft.[925] The Council also adopted an amendment to the
Chicago Convention,[926] to Article 3 specifically, stating that contracting
states undertook to have due regard for the safety of navigation of civil
aircrafts. Additionally, annex II of the Convention also provided for
procedures to be followed in the course of interception, which were not
complied with in the Soviet incident, and also clearly enunciated the fact
that an intercepting aircraft cannot use weapons in all cases of interception
of a civil aircraft.[927] The newly inserted article, namely, A.3(a)bis states
221

that the contracting states recognize that every state must refrain from
resorting to the use of weapons against the civil aircraft in flight, and, that in
case of interception, the lives of the people on board and the safety of the
aircraft ought not to be endangered. The provision also indicates that there
should be no interpretation of the provision itself, in a manner modifying the
rights and obligations of states as set forth under the UN Charter. Further, the
next clause, i.e., clause b, reaffirmed the stance that the right of a state to
require a civil aircraft at a designated airport, where such aircraft is flying
above its territory devoid of authority, or, where there are sufficient grounds
to conclude that it is being used for any activity inconsistent with the
Convention itself.
In studying the provision itself, the first thing that strikes the reader is the
reference to weapons, as opposed to force. This is indicative of the creation
of a permissible limit, in that there may be a use of force against an
intercepting aircraft, as long as there is no use of weaponry. The provision
also indicates no difference between national and foreign civil aircrafts, in
that the provision is applicable to a civil aircraft. The second clause, in
contrast to related jurisprudence, specifically article 4 of the 1963 Tokyo
Convention on Offences and Certain Acts Committed on Board an Aircraft,
comes across as being more restrictive of the two. The latter allows room
for intervention only in the event of there being effect of the offence on the
territory of the state, or, if such offence has been committed by or against a
national or permanent resident of such state, or, if the offence is antagonistic
to the security of such state, or if the offence comprises of a breach of any
rules or regulations relating to the flight or maneuver of aircraft in force in
such state, or, the exercise of jurisdiction is necessary to ensure the
observance of any obligation of such state under a multilateral international
agreement. There have been concerns as to the continued existence of
Article 3(a)bis, particularly because the Chicago Convention, under Article
82 indicates that an abrogation of all inconsistent obligations and
agreements. Nevertheless, this need not necessarily have to happen,
particularly since the Tokyo Convention is concerned only with the offences
committed on board an aircraft, while Article 3(a)bis deals with the use of
weaponry against the aircraft itself. For all practical purposes, Article
3(a)bis has come to be treated as a norm of customary international law.
Resort to force is illegal in cases where there happens to be a situation of
distress. When an aircraft is in distress, Article 25 of the Chicago
Convention demands that there needs to be delivery of necessary assistance.
The use of force during distress is certainly outlawed, but only if the
existence of distress is made known to the intercepting forces.
222

The sole exception to the prohibition of the use of force is equally

applicable in the airspace regime. States are free to use force in a bid to
protect themselves against attack, i.e., in the course of self-defense. If it is
proved that the intruding aircraft was evidently constituting by its conduct,
an act of aggression, or has carried out an armed attack, or is an act of
terrorism, the victim state is certainly allowed to pursue its cause of selfdefense, and undertake retaliatory action bearing proportionality. However,
there is always a necessity to keep to a cautious approach in such issues. A
state cannot act upon suspicions, or mere unfounded doubts. The Soviet
Union was quick to assume that the Korean Airliner was an American spy
plane. The consequences were severe, and irreparable. Therefore, actions
taken need to be properly bounded by rationality, reasonableness, necessity
and proportionality, and upon the strong foundation of clear-cut evidence.
The issue came to fore again in the context of the US shooting down an
Iranian civil airliner over the Persian Gulf, by way of its warship called the
Vincennes in 1988. However, there was no unauthorized aerial intrusion
into domestic airspace.[928] The blame was vested on the warship, by both,
the US Defense Department and the ICAO, in their reports on the incident.
[929] The core issues were the mistakes made in identifying the aircraft,
and the warnings issued to it, coupled with the already tense situation in the
area on account of the Iran-Iraq War. Scholars have suggested against
holding the United States responsible under law, since there would need to
be proof of fault beyond all reasonable doubt, and since the incident
occurred in a war zone, it was a relevant fact to be taken into consideration.
Self-defense could not quite be invoked, since necessity and proportionality,
the two factors qualifying the very right itself, were not quire fulfilled. The
ICJ took up the matter upon Irans application, but due to the settlements
entered into by both states, the matter was retracted from the ICJs list upon
receipt of notification testifying to such full and final settlement.[930]
In 1990, when Iraq invaded Kuwait, the UN Security Council acted upon the
issue. Resolution 670 (1990) went on to declare that permission for any
aircraft to take off, ought to be denied by all states from their territory,
where the aircraft was carrying any form of cargo to, or from Iraq or
Kuwait, aside of food and humanitarian supplies for medical and health
purposes, or, for the sake of the UN Iran-Iraq Military Observer Group.
States were called upon to deny permission to any aircraft seeking to land in
Iraq or Kuwait, to fly over their territory, unless it was subject to inspection
to ascertain that it bore no cargo in violation of the UN Security Council
resolution 661 91990), or, unless such aircraft had received the approval of
the Sanctions Committee, or was certified by the UN as being solely for the
223

sake of the Military Observer group.

When Cubas military aircrafts shot down two civilian planes over
international waters in 1996, there was strong condemnation from the rest of
the international community. The ICAO adopted a resolution on 28 June,
1996, reaffirming certain principles. Primarily, states have an obligation to
refrain from the use of weapons against civil aircrafts in flight, and, while
intercepting such aircraft, the lives of people on board must not be
endangered. Secondly, states are under an obligation to take appropriate
measures to prohibit the deliberate use of any civil aircraft registered in that
state, or operated by an operator who has his principal place of business or
permanent residence in such state, for any purpose that is incongruent with
the aims of the Convention on International Civil Aviation. Next, the use of
weapons against a civil aircraft in flight was incompatible with the primary
considerations of humanity, the rules of customary international law as
codified in Article 3 bis of the Convention on International Civil Aviation
and the Standards and Recommended Practices enumerated in the Annexes
of the Convention.[931] These Standards and Recommended Practices as
found under the Annexes are of relevance. Particularly important are those
relating to aviation security in Annex 17 to the Chicago Convention, which
has been subject to amendment a couple of times- Amendment 10 came into
play after the September 11 attacks, concerning international terrorism.
Subsequently, the ICAO adopted a Declaration on the Misuse of Civil
Aircrafts as Weapons of Destruction, in a bid to denounce the practices of
terrorism, using civilian aircrafts as a destructive weapon.[932]
Having explained these issues, one must remember, that the situation entirely
differs in the context of military air vehicles intruding into the airspace of
another state devoid of authorization. Self-defense would apply in such
cases, for any acts of interception, and the extent of proof would also be far
lower.
Outer Space and the Law governing it
The fundamental rule of air law is that a state enjoys absolute sovereignty
over all of the space constituting the column of airspace attached to the
territorial expanse subjacent below, belonging to the state. Originally, there
was a belief that this right of absolute sovereignty existed right up into an
unlimited length of the space above the land. However, with the evolution of
rules that governed outer space, there were limits imposed on the extent of
sovereignty a state could enjoy. The original system of absolute sovereignty
over the entire column of space above a states territory was called usque
ad coelum, which, as of today, has been considerably modified.
th

224

With the first earth satellite being launched into airspace in 1957, by the
USSR, space exploration drew takers from different quarters, and began to
increase by leaps and bounds.[933] Satellites are now an integral part of
day-to-day living, what with television channels, communications,
observation networks and the like being fundamentally dependant on them.
Exploration of the moon and space expeditions to different planets, have
also come to exist as part of the norm, today, where scientific exploration
and discovery are concerned. Thanks to such advancement in science, there
has been plenty in terms of knowledge upon a variety of issues, such as
resources of the earth, the extent of the solar system, ionospheric activities,
solar radiation, orbital movements, the possibility of life on other planets,
comet and meteoric movements, cosmic rays, planetary structures and
movements.[934] With so much knowledge, and emergent curiosity in issues
arising out of the possible exploitation and use of outer space, there was a
need to regulate the conduct of states in their activities in outer space. This
paved the way for the creation of a regime comprising principles and rules
governing and regulating the interests of states concerned, in tandem with
the needs and interests of the international community at large.
Outer Space- Extent, Limits and
Definition
With the abridgement of the rule of usque ad coelum, state sovereignty
ceased to exist with airspace, since it was completely impractical to
continue with a regime of absolute sovereignty in an arena where several
states had interests in carrying out exploratory activities in outer space. It
was equally impracticable to seek the consent of each state before the
passage of satellites, or, for any satellites or vehicles orbiting at a height of
more than 100 miles above their surface. States have, no doubt, acquiesced
in the traversal of space by such satellites and space vehicles. This is
indicative of the fact that there is a limit to the extent of airspace, and all the
space above is free for use by all states, without prejudice to the interests of
any. Drawing a line to demark a limit is obviously not possible, but with
enough reliance reposed upon technology and science, it has been calculated
at 100 miles above the sea-bed.
Beyond airspace, the entire zone that has now come to be known as outer
space is regarded as res communis, i.e., common property. This implies that
no portion of outer space is subject to sovereignty of any state. States have
been vociferous in supporting this line of thinking, as has been seen in a
whole string of General Assembly Resolutions, specifically UNGA Res
1962 (XVII), which paved the way for the Declaration of Legal Principles
225

Governing the Activities of States in the Exploration and Use of Outer

Space. The declaration created a regime, establishing a series of rules,
including the key rules that outer space and celestial bodies were to be left
free for exploration and use by all states on the common platform of
equality, in keeping with international law, and avoidance of national
appropriation of outer space at all costs.[935] UNGA Res 51/126 of 1996
adopted the Declaration on International Co-operation in the Exploration
and Use of Outer Space. This declaration consolidated orchestrated effects
of states, by calling for international co-operation, with special attention to
the benefit and interests of developing countries, and countries with nascent
space operations, stemming from such international co-operation,
undertaken in conjunction with countries with more advanced technology at
their disposal.[936]
With the conclusion of the 1967 Treaty on the Principles Governing the
Activities of states in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies. The treaty reemphasizes that outer space,
inclusive of the moon and all other celestial bodies are outside the purview
of national appropriation by any means or methods. In addition, the
exploration and use of outer space needs to be undertaken only with the sole
objective of being beneficial to all states. There is, however, no stipulated
boundary demarking airspace and outer space.[937]
States have also agreed, as exposited by Article 4 of the Outer Space treaty,
that they shall not place in orbit around the earth, any objects carrying
nuclear weapons, or any other kinds of weapons of mass destruction, install
such weapons on celestial bodies, or station such weapons in outer space in
any other manner. Despite such clear terms, there still seems to be quite a
considerable difference of opinion when it comes to the interpretative
connotation of the provision. The article is clear in that it bans only nuclear
weapons, and weapons of mass destruction from being deployed in outer
space, celestial bodies and the orbit of the earth. While this is a specific
provision in its own right, the core contents of Article 1 is clear in that outer
space is to be used exclusively for peaceful purposes and for the benefit and
in keeping with the interests of other states. This is, by logical construction,
one would be led to conclude that there should be absolutely no military use
of outer space whatsoever. The contradiction arises in that Article 4 is
categorically prohibitive of the use of nuclear weapons and weapons of
mass destruction, and implicitly allows the deployment of military
personnel for scientific purposes and in pursuit of peaceful considerations.
Therefore, putting the arguments down in simple terms, it is the contention
of one that all forms of aggressive military use are prohibited, while the
226

opposing contention is that all forms of military behaviour are prohibited

altogether.[938] Article 6 is instrumental in pinning responsibility for all
national activities in outer space, the moon and celestial bodies included,
irrespective of whether the activities are undertaken by governmental or
non-governmental entities, and also requires the augmentation by conduct,
the assurance that outer space shall only be used in conjunction with the
Treaty and its requirements. When a non-governmental entity seeks to
embark upon activities in outer space, it is necessary that they seek
authorization and continuous supervision of by the state in question during
the operations. International organizations are also under an obligation to
adhere to the rules prescribed by the treaty, and, all the states it comprises
also need to stay in conformity with the quintessence of the treaty.[939] On
the same lines, is Article 8, which indicates that states retain jurisdiction
and control over personnel and vehicles launched by them into space.
Article 7 pins responsibility upon the states, for any damage caused to other
states that are signatory to the treaty, by way of their space objects.[940]
The 1972 Convention on International Liability for Damage Caused by
Space Objects is an addition and amplification of the aforementioned
provision. Article XII specifically provides for the payment of
compensation in keeping with the tenets of international law, and the
principles of equity, justice and good conscience, for any damage caused by
space objects in outer space. Article II articulates that there shall be
absolute liability to pay compensation for any damage caused by a space
object on the surface of the earth, or, to any aircraft in flight. Article III
hinges upon fault-based liability, or culpability based upon the element of a
dolus, for damage caused to people and property aboard a space object,
occurring elsewhere. Therefore, there are two different liability regimes,
for damage caused by a space object, in two different places. The Liability
Convention, as it is called, was called upon by Canada in 1979, when there
was allegedly damage ensuing from the Soviet Cosmos 954.[941] With a
view to serving as a mechanism to reinforce the system of state
responsibility, the Convention on the Registration of Objects Launched into
Outer Space entered into force in 1976. The Convention created a regime
encouraging the registration of pertinent and important information
concerning space objects, specifically such as their purpose, location and
parameters, with the UN Secretary General. Following this, the UN General
Assembly adopted Principles Relevant to the Use of Nuclear Power
Sources in Outer Space, in 1993, via UNGA Res 47/68. These principles
purport that the launching state is under an obligation to ensure that a
thorough, comprehensive assessment of safety is undertaken, and made
227

publicly available. Where it is found that a space object seems to be

malfunctioning, along with an added risk of re-entry of radioactive materials
to the earth, such state that launched the vehicle itself, is under an obligation
to inform concerned states, and the UN Secretary General, and respond
promptly to all requests seeking extra information, or seeking consultations.
In addition, Principle 8 also lays down that states shall have international
responsibility for national activities involving the deployment of nuclear
power in outer space, irrespective of whether the activities are carried out
by governmental or non-governmental entities. Principle 9, further,
enunciates that each stat launching or procuring the launching of a space
object, and each and every state from whose territory or facility, such a
space object is actually launched, shall be internationally liable for the
damage caused by such space object so launched or procured, or
components of such objects.
A fourth agreement pertaining to space law is the Agreement on the Rescue
of Astronauts, the Return of Astronauts and the Return of Objects Launched
into Outer Space, 1968. It governs the issue of catering to astronauts in need
of emergency assistance. The key rules are that there ought to be immediate
notification of the launching authority, or, in the event that it is not possible,
a public announcement ought to be made, pertaining to the space personnel
in distress, and immediate assistance ought to be provided. Search, rescue
and prompt return are also mandated requirements under the Convention,
along with recovery and return of space objects. Following this regime, the
1979 Agreement Governing the Activities of states on the Moon and other
Celestial bodies came into existence.[942] The agreement is instrumental in
hallmarking the pursuit of demilitarization of the moon and other celestial
bodies. However, military personnel may be deployed for purely peaceful
purposes. The agreement also reiterates the stand taken by the Outer Space
Treaty of 1967. Article IV dictates that the exploration of the moon, and the
use of the moon ought to be in conjunction with the underlying notion that
there should be complete conformity with the basic tenet that it should be the
province of all mankind, and that it should serve the benefit and interests of
all states involved. Article XI carries on in the same strain, reiterating that
the moon is a natural resource, and an integral part of the common heritage
of mankind, and along with other celestial bodies, is not to be subject to
national appropriation and sovereign control. An international regime to
govern the exploitation of the moon and its resources, whenever feasible,
has been sought to be created,[943] with the basic purposes to ensure
orderly and safe development of natural resources of the moon, the rational
management of the resources, the expansion of access and opportunity to use
228

those very same resources, and an equity based sharing regime for all states
privy to the regime itself, with due regard to the interests and needs of
developing states and with special consideration to other states that have
contributed to the exploration of the moon. The regime, of course, is one that
would come into play only in the event of feasibility being an accomplished
feat. Furthermore, until into force, the ban on any form of exploitation shall
continue, as explained under Articles XI(4) and VI(2), while allowing
exploration and use, thereby allowing scientific research to continue. As
with all other cases involving outer space, there is absolutely no room for
private ownership of any minerals or natural resources on the moon, or
celestial bodies.
The creation of an International Space Station, arising as a confluence from
the Agreement of 1998 between Canada, Japan, Russia, the United States,
and ten member states of the European Space Agency, has been instrumental
in consolidating international collaboration, in the design, development,
operation and use of the space station.[944] The use is entirely under the
leadership of the United States of America, and the regime has interesting
stands on intellectual property involved in outer space, as also the expanse
of criminal jurisdiction in the context of issues arising out of the use and
operation of projects in outer space.
Satellites and Telecommunications
The biggest boom in technological advancement is the emergence of
telecommunications and the use of satellites in a bid to augment the
development in telecommunications. Communication, education and
entertainment have all evolved by leaps and bounds thanks to the use of
satellites in outer space.[945] The INTELSAT agreements, or the
International Telecommunication Satellites agreements entered into world
over, constitute the legal regime in order to allow member states of the
International Telecommunications Union. These agreements enable the
member states to assist the development and establishment of the system,
despite the fact that most of the work has already been carried out by
several American companies, specifically COMSAT (Communications
Satellite Corporation). Communist countries, in 1971, came up with their
own weft of telecom satellites, named the INTER-SPUTNIK.
Exploitation of the orbital resources by satellites and telecom devices are
founded on the regime as built up by the 1967 Outer Space Treaty, and the
Telecommunications Convention and Protocols of 1973, along with a
plethora of Telecommunication Union Radio Regulations. The worldwide
radio spectrum is subject to regulation by the World Administrative Radio
229

Conferences, and by International Telecom Union.

While there is a fairly sound legal system in place, there still are too many
problems that need attention and need to be tackled. The allocation of radio
frequencies, direct broadcasting through satellites to willing and to
unwilling states, the trouble caused by usage of satellite phones are some of
the few issues. The UNESCO and the Committee on the Peaceful Uses of
Outer Space have been continuously discussing issues pertaining to the
control of material broadcast by satellites, and the subsequent issue of
protecting cultures from being swamped.[946] The use of outer space for
broadcasts and communications have created some sort of a debate between
sovereignty of states, and the right to information and allied rights that
constitute some of the basic human rights.[947] The UNESCO has been
extremely active in this regard. In 1972, a declaration was adopted, called
the Declaration of Guiding Principles on the Use of Satellite Broadcasting,
providing that all states were accorded the right to decide on the content and
form of the educational programs broadcast to their own people. Article IX
of the declaration emphasized that there needs to be prior agreement, for
direct satellite broadcast to the populace of countries aside of the one of
transmission. While the regime was clear in its own right, plenty of states
sought to have a more elaborate and properly drafted regulation.[948]
Subsequently, the UN General Assembly adopted a resolution, namely,
UNGA Res 37/92, which was called the Principles Governing the Use by
States of Artificial Earth Satellites for International Direct Television
Broadcasting. The resolution mandates that a state seeking to establish or
authorize the establishment of direct television broadcasting satellite
services are first to notify the proposed receiving state, and then undertake
an active consultation with them. It is only upon these agreements and
arrangements, that a service may be established. These services need to be
in conformity with the International Telecommunications Union. While the
ideas were generally a little less disagreeable, France, erstwhile West
Germany, USA, UK and Japan, inter alia voted against it.
The International Telecom Union has been instrumental in orchestrating
coordination on technical fronts, between the sending and receiving states,
in relation to frequency and orbital positions before direct broadcasts are
operated. The idea is to avert any adverse effect on the regulation of
broadcasts, although both, frequency and orbital positions are related and
connected.[949]
Another issue that has been rather intriguing, is the mechanism of remote
sensing, which implies the discovery and analysis of resources on the earth,
230

by deploying sensitive sensors in aircrafts and space vehicles, in a bid to

determine the extent of resources available on earth. In addition, the
mechanism has been used extensively in a bid to determine the likelihood of
weather changes, land observation and oceanic observation, along with
meteorological and geographical uses. Military observation and monitoring
has been one of the key areas where the mechanism of remote sensing has
been used. While the modality is indeed rather resourceful and filled with
potential waiting to be tapped, it is not without any accompanying ethical
considerations. The use of the information from remote sensing can be
antagonistic to the balance of power amongst states constituting the
international anarchy. The UN General Assembly Resolution, 41/65 of
1986, has been instrumental in regulating the process, by adopting as many
as fifteen core principles governing the process of remote sensing. The
principle of common benefit of mankind, and subservience of the interests of
all interested states underlies the resolution, which also encourages that
states involved in sensing ought to promote international cooperation and
protection of the environment on earth. The provision of seeking prior
permission before embarking on a sensing procedure is conspicuous by its
absence, but there are provisions encouraging consultations and
enhancement of participation.
In the light of remote sensing, information sharing is a rather intriguing
issue. A few states have sought the creation of an equitable regime for the
sake of information sharing,[950] while raising concerns about the possible
implication of use of information when in the hands of a few states. A few
states are generally accepting of the idea that states have an inherent and
inalienable right to dispose off their natural resources and all information
concerning them,[951] while still more have expressed their concerns in the
light of problems that would ensue from such use, and the likelihood of a
violation and threat to the right to information. While there has been ample
importance attached to the issue by the UN Committee on the Peaceful Uses
of Outer Space, viable solutions have been evasive.[952] The Principles on
Remote Sensing, 1986, as adopted by the UN General Assembly, have
enunciated that the sensed state shall be endowed with the right to access all
the primary and processed data, as produced from such sensing activities,
on a non-discriminatory and reasonable-cost term. Needless to say, a state
that embarks upon remote sensing shall bear international responsibility for
all its activities as they flow from such sensing.
Satellites have emerged aplenty, several from each state and their private
corporations. The influx of this much traffic in outer space has somewhat put
the geostationary orbit under considerable pressure. The geostationary orbit
231

extends to an approximate extent of 22,300 miles directly above the equator,

where satellites orbit at the speed of the earths rotation. This zone is the
only portion of orbit that has the ability to provide continual contact with
ground stations, through a singular satellite, thereby qualifying as a finite
resource.[953] Satellites in geostationary orbit can only occupy a single
ring above the equator, approximately 35,800 kilometers into space. This
implies a need to space the satellites apart, which again creates
complications as there only a limited number of orbital slots available for
access, allowing therefore, a limited number of satellites can be placed in
geostationary orbit. The Bogota Declaration of 1976, as signed by Brazil,
Colombia, the Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire,
indicates that the portions of geostationary orbit are part of their respective
territorial zones, over which these equatorial states exercised sovereign
rights.[954] The core contention of their argument is that the geostationary
orbit happens to be a rather exclusive gravitational phenomenon, as
generated by the portion of the earth that is occupied by them, and lies
below that belt in the orbit. This move has been met with considerable
discontent by other states that have shown their discontent through
vociferous protests.[955] These states, in refuting the claims of the
equatorial states, have gone on to assert that it is a rather wild, unscientific
observation of sorts, considering that the gravitational pull depends on the
entire expanse of the earth, and on the speed and velocity of the satellite
involved. The primary contention, however, is the common heritage of
mankind argument, that no part of outer space can be subjected to the
sovereignty of any state, and since the geostationary orbit constitutes an
integral extent of outer space itself, it cannot be appropriated by any state. A
comprehensive legal regime would oust any doubts and discrepancies.
While the field of Space Law is still in its nascent stages, it is steeped in an
era of rapid change and development. The resources available for access in
outer space are infinite, and limited only by our ability to use them in a
manner that is both fair and equitable to all states, in keeping with the
interests of all states, and in tune with the needs of the environment. When
commercial space transportation becomes widely available states at large
will find themselves in a position that would enable them to reap the
benefits of space resources. In the light of that line of thinking, considerable
debate and negotiation has been underway in pertinence to whether space
should continue to be construed as being part of the common heritage of
man, and therefore closed to any national claims and assertions of
sovereignty, or whether its legal definition should be changed to allow
private property in space. Only time can tell.
232

Chapter 10- Law of Sea

The Law of Sea governs the use of the seas as is undertaken by states in
their relations with one another. Throughout history, the seas have played an
integral role in forging communication and relations between states. Aside
of this, it has been a reservoir of resources that have provided for the living
of myriads of civilizations and coastal states. With these attributes, the seas
have oftentimes been subject to use, exploration and exploitation. At the
behest of states that do not belong to the coasts, of course, importance has
been attached to the fair use of the zone that does not constitute the exclusive
territorial expanse of any state. As a consequence of so many uses being
attributed to the sea, as a resource, as a means to assist communication and
trade, there emerged a legal regime governing the law of sea.[956] The seas
constitute nearly 70% of the earth, and account for a treasure-trove of
resources for several states.
At one point of time, seas were deemed to be subjected to national
sovereignty. Specifically, the Portuguese in the seventeenth century, claimed
that large segments of the high seas as part of their territorial expanse. The
freedom of the seas doctrine limited the national rights and jurisdiction over
the oceans to a narrow belt of sea surrounding a nations coastline. The
remainder of the seas was proclaimed to be free to all and belonging to
none. The claims were rejected by Hugo Grotius, the undisputed father of
international law, who advocated the rule of res communis where the high
seas were concerned. It was as early as his scholastic work that the rule of
keeping the high seas open for all states to access and use, and retaining it
as incapable of sovereign appropriation, came to be.[957] That line of
thinking has been retained and preserved today, being given shape and
personification in the 1982 United Nations Convention on the Law of Sea as
well. The rule saw support from many a North European State, each of
which sought freedom of the seas for the sake of exploration and expansion
of commercial intercourse with countries in the East.
While this rule was exclusively for the High seas, a considerable difference
in the rules for other portions of the seas began to evolve. Waters, in the
context of international law, have been segregated into three different
portions, each of which is governed by rules exclusive to them.[958] The
233

three divisions accorded to international waters are, internal waters, the

territorial seas and the high seas. A coastal state is fully allowed to
appropriate and exert sovereign rights over a portion of the sea constituting
a maritime belt around its coastline, constituting what is known as the
territorial sea. Plenty of work has gone underway as regards the expanse of
this territorial sea, and in answering the question as to the precise position
of the line dividing the territorial seas and other zones constituting the
oceanic waters. In the early eras, the expanse of the territorial sea was
preponderant upon the ability of such state to exert dominance by using
military means from the confines of its own shore. Now, with time, states
have all sought to expand the extent of their maritime belts by subjecting
greater parts of the ocean to their exclusive jurisdictional control.
This has encouraged the creation of newer zones created, as several coastal
states have begun laying claims to portions of the high seas, appended to
their territorial seas, in the form of contiguous zones, exclusive economic
zones, exclusive fishing zones and the continental shelves, a trend which is
certainly on the rise, as states are moving towards laying claims over larger
portions of the sea. The question as to whether a particular portion of the
seas belongs to a state or not, is subject to a fact and circumstance based
analysis in keeping with the legal regime.[959]
Originally, the accepted expanse of the territorial seas was a 3 nautical mile
limit. Now, it has been expanded to extend up to 12 nautical miles. Of
course, as has already been explained, there has been a consistent assertion
of jurisdictional rights over different parts of the sea, which at one point
were deemed high seas. What was originally an unconditional perception
that there should be absolute freedom on the high seas witnessed much
modification after states began realizing the importance of the resources in
the seabed and the sea itself, way beyond the expanse of the limit
determined as the territorial sea. As a counter, in perhaps, a bid to quell
fears of sovereign control over the high seas, states have asserted the
creation of a common heritage of mankind regime over the high seas, and the
seabed itself. With so much debate and difference, there have consistently
been contradictory principles in the legal regime constituting the law of sea.
An attempt to buttress the law into more concrete form, witnessed the
occurrence of plenty of conferences culminating in the 1958 Conventions on
the Law of the Sea, following the first United Nations Conference on the
Law of the Sea, in Geneva. The Conventions included four Conventions
within its fold, namely, the Convention on the Territorial Sea and the
Contiguous Zone which came into force in 1964, the Convention on the High
234

Seas which came into force in 1962, the Convention on Fishing and
Conservation of Living Resources which came into force in 1966 and the
Convention on the Continental Shelf which came into force in 1964. Of the
four, the Convention on the High Seas mentioned in its preamble, that it was
generally a declaration of established principles of international law. The
other three conventions though did not make such a specific mention,
essentially have come to be accepted as personifying already existing rules,
and creating new rules. The 1958 conference failed to achieve a common
agreement on several issues, particularly those as to the extent of the
territorial sea. Subsequently, a second conference came into play, with the
1960 Conference on the Law of Sea. This conference also failed to arrive at
a conclusive answer to the issue. With time, several states began expressing
their general discontent as regards various rules that were laid down in the
1958 Conventions, and the extent of development in science and technology
pressed for urgent creation of rules to govern issues arising from their
onslaught.
Following this, was another Law of Sea Conference, convened in 1973,
held between 1974 and 1982, between as many as 144 states and 8
Specialized Agencies. The Conference dabbled with plenty of issues,
including several states and international organizations, and considered
several economic, political and strategy oriented issues. Several states that
emerged after colonial rule began expressing interests in securing sovereign
rights over a 200-mile region beyond the expanse of their territorial sea, and
also endeavoured to establish control over the seabed, so as to prevent
states with advanced technology and ample resources in their fold, from
extracting minerals from the resource devoid of political constraint.
Developed states had a different agenda, considering that they were
interested in safeguarding all their routes of navigation, and also opposed
any act that amounted to a weakening of their freedom of passage through
international straits. They were also vociferous in championing their desires
in pursuing and safeguarding their economic welfare, particularly by
pursuing a policy of free exploration and exploitation of the resources on
offer in the high seas and the seabed. In addition to these demands, were
another set of states in pursuit of their own interests, such as those that were
landlocked, or those that were archipelagic regions with an interspersion of
sea and land.[960] With due regard and respect being accorded to each state
and its demands, the final draft of the Convention on the Law of the Sea
turned out to be a package deal of sorts, with compromises being arrived
at between states. Slow progress was a characteristic feature of the
conference and its results, particularly because of the extent of interrelation
235

most issues bore with one another. Quite often, a state was found asserting
that it would support a proposal or a provision on a particular issue, only if
other states were willing to extend support to another proposal on another
issue, which ultimately led to the package-deal set up. A noteworthy
example, is the case where developing states agreed to the provision of a
passage via straits and to the increment of continental shelf rights, to an
extent beyond the 200 nautical mile limit stretching from the coast, in
exchange for the grant of internationalized sea-mining rights.[961] Another
reason for delay in the final outcome, was the deviance in the path of action
by the third conference. The Conference endeavoured to settle on decisions
by way of consensus,[962] as opposed to the earlier conferences which
concentrated on a majority vote mechanism.
With the final draft out in action, in December 1984, the Convention was
closed for signatures on 9 December, 1984, with a solid 159 signatures in
its cache. Article 308(1) of the Convention reads that the convention would
enter into force twelve months after the date of deposit of the sixtieth
instrument of ratification or accession. Several western states, with the
exception of Ireland, refuted signature and ratification, on the ground that
they were dissatisfied with a couple of provisions under Part XI, dealing
with the exploitation of the deep sea-bed. In an attempt to achieve a
universally acceptable solution, and to arrive at a conclusion in relation to
the objections of industrially advanced states, a couple of consultations
among interested states were conducted at the behest of the UN Secretary
General, between 1990 and 1994.[963] These rounds of talks finally
culminated in an Agreement Relating to the Implementation of Part XI of the
Convention, which in turn provided for the modification of the deep seated
sea-bed mining regime, which found considerable acceptance amongst
states.[964] The UN General Assembly on 29 July, 1994, adopted the
agreement. The agreement established a Finance Committee that would
originate the financial decisions of the Authority.
With a fairly concrete legal regime in place, very little has been left to
uncertainty. Certain provisions of the Convention codify customary norms
under international law, in the process carrying forward the same from the
1958 Convention. However, plenty of provisions in the 1982 Convention
constitute a departure from the erstwhile 1958 Convention, and from the
extant rules of customary international law. Universal acceptance has
ensured that the Convention attained the status of a prominent piece of law
pertaining to the seas.
In addition, article 311(1) of the 1982 Convention, the Convention prevails
th

th

236

over the previous four 1958 Conventions. The 1982 Convention, after
having withstood the test of time, is a comprehensive framework, governing
all forms of oceanic use, and territorial concerns not just confined to the
expanse of the seas, but also to the airspace to which the sea is subjacent,
and to the seabed and the expanse of subsoil below the seas. States and their
conduct, and the expanse of their rights and obligations under the law are
entirely governed by the convention.
To undertake a complete study of sorts, it is necessary to understand the law
as it stands, governing internal waters, the actual territorial waters, and the
expanse that forms the high seas.
Internal Waters
The internal waters of a state comprise the ports, harbours, rivers, streams,
brooks, lakes and canals, along with the water that remains on the inner,
landward segment of the baselines, which is taken into consideration in
measuring the extent of the territorial sea.[965] Essentially they imply all
those parts of the seas that are not high seas, or portions of the territorial
seas of the coastal state. The basic legal framework is governed by
customary international law.[966] The 1982 Convention, under Article 8 (1)
defines internal waters to be those waters that are on the landward side of
the baseline, from which the extent of the territorial sea is measured. The
definition corresponds to Article 5 of the 1958 Convention.
Without doubt, it is true that the sovereign control extends to the entire
expanse of the internal waters.[967] A coastal state has every right,
therefore, to prohibit entry into its ports by foreign ships, except in those
cases where ships face any difficulty on sea.[968] Earlier, there used to be a
right of innocent passage over the internal waters of a state.[969] The
difference between territorial seas and internal waters lies in the fact that
there is no right of innocent passage over the latter. Coastal states, thus,
have the right to exercise jurisdiction over foreign ships within their internal
waters to enforce their laws. This runs concurrent with the jurisdictional
powers of the flag state and the state of nationality of the perpetrator. This
set of rights can be understood in the light of a few decided cases. In R. v.
Anderson,[970] an American National who had committed an act of
manslaughter on board a British vessel on French waters, was subject to the
jurisdictional ambit of the British courts. This was upheld even though the
incident occurred within the sovereign expanse of the French Courts, and the
perpetrator had American Nationality, which entailed that the courts of both
these states had jurisdictional rights as well. As a consequence, thus, he was
considered capable of being convicted under English law. Similarly, in
237

Wildenhus case,[971] the American Courts were declared competent in

terms of exercising jurisdiction over a crew member on board a Belgian
vessel, for the murder of another Belgian national, at the time when the ship
was docked in the port of Jersey City in New York.
Coastal states have every right to forbid foreign merchant ships from
entering into their ports. Nevertheless, most states have ample interest in
pursuing their trade and economic interests, and therefore, are open to the
idea of allowing foreign ships into their ports. Having dealt with the
question of entry into the ports, the next issue is with regard to the status
such ships have, once they make their foray into the port. In the light of this
issue, it is necessary to understand the distinction between civil and
merchant ships, and warships, and ships belonging to foreign countries not
indulging in any non-commercial services, as the rules governing one differ
from that governing the other.[972]
Coastal states are permitted to apply and enforce all its legal provisions
against foreign merchant ships, within the ambit of its sovereign control, as
it extends to its internal waters. This also extends to the power granted to
port states, to embark upon enforcement action for all issues pertaining to
pollution offences occurring elsewhere.[973] Nevertheless, the rule is
applicable subject to certain exceptions. The jurisdictional ambit of the
coastal state and its courts has no exclusiveness, as the courts of the flag
state, i.e., the state to whom such ship belongs to, have equal rights of
jurisdiction in trying people for the crimes committed on the ship. Similarly,
the coastal state has no jurisdictional rights to intervene in the exercise of
disciplinary powers by the captain, in dealing with his crew. Another
restriction is couched in the principle that if a crime is committed by a
member of the crew, on the ship, and such crime does not affect the good
order of the state or its inhabitants, the coastal state has to remain out of the
issue, and allow the same to be dealt with by the flag state. This obligation
stems from respect towards the other state, and the need for ease and
convenience of procedure. Coastal states, further, cannot seek to gain from a
ships condition when it is in distress as such ships have a considerable
degree of immunity. Therefore, a coastal state cannot impose taxes and
duties in excess of all the services it renders.
A coastal state has all the authority to embark upon full enforcement
procedures against a foreign commercial vessel, found on its waters without
having prior permission. In comparison, however, the powers of the coastal
state over foreign warships are far lesser than the powers it may wield over
foreign merchant ships. Warships have immunity from enforcement. But, a
238

coastal state can demand that a warship leave its internal waters with
immediate effect. Warships are under an obligation to observe the coastal
states rules on navigation and follow all regulations dictated by it. Though
such a rule does exist, the coastal state cannot send its authorities on the
ship, and cannot carry out any activities on the ship without the Captains
permission. The crew are also immune from prosecution by the coastal state
for any crimes committed by them on board the ship, and for crimes that are
committed on the shore of the coastal state, if they were in uniform, and on
official business at the time when the crime is committed. This rule exists
unless the flag state has decided to waive its immunity. The status of the flag
state stems from the fact that the warship is deemed a direct extension of the
sovereign state.[974]
Measuring Baselines
Measurement of the expanse of the territorial sea is embarked upon, by
commencing from the low-water mark around the coastal expanse of the
state. This is a fairly long-standing principle, having evolved as a norm of
customary international law. Article 3 of the 1958 Geneva Convention on
the Territorial Sea and the Contiguous zone was the first to mention the
principle in writing. Subsequently, this was adopted as Article 5 of the 1982
Convention. In practice, the low-water line along the coast is understood to
mean that portion as is marked on large-scale charts, officially recognized
by the coastal states.[975] Most times, locating the low-water line that
functions as the baseline for measurement of the width of the territorial sea
is not difficult.[976] With the advent of the 1958 and 1982 Convention,
specifically under Article 11(1) of the former and 13(1) of the latter, the
low-water line of low-tide elevations are also capable of being used as a
baseline, in measuring the breadth of the territorial sea, if it is placed partly
or wholly at a distance that does not exceed the territorial seas breadth,
from the landmass. In the event that the low-tide elevation is located in an
area overlapping with the territorial sea of two states, both states are fully
permitted to use the part of the pertinent low-water line, with a view to
calculating the expanse of their respective territorial seas.[977] Devising
what is known as the leap-frogging mechanism, the ICJ went on to assert
that low-tide elevations may not be deemed part of the territorial expanse of
the concerned state, while analogizing with islands. It further asserted that
low-tide elevations situated within twelve nautical miles of another similar
elevation, but well beyond the territorial sea of the state, may not be put to
use in determining the expanse of the territorial sea.[978]
A lot of issues have plenty to do with the geographical structure that each
239

states coastline possesses. If there are considerably deep indentations on

the coast, or if there are plenty of islands that run corresponding to the coast,
or where it is found that bays cut deep into baselines, plenty of legal issues
and calculation-related complications arise. This has paved the way for the
creation of a different genus of rules bearing special importance, especially
when there arises circumstances welcoming the intercourse of states, such
as when foreign vessels choose to fish closer to the territorial sea. In the
words of Shaw, a more rational mode of drawing baselines would have the
effect of enclosing larger areas of the sea within the ambit of the states
internal waters, and thereby extend the territorial seas boundaries further
than this traditional mechanism.[979] A case bearing considerable
jurisprudential importance in this regard is the Anglo-Norwegian Fisheries
Case.[980] The case involved the passage of a Norwegian decree, which
delimited the expanse of its territorial sea to approximately a thousand
miles of its coastline. Instead of measuring this expanse from the low-water
line, the Norwegian mechanism involved the construction of several straight
baselines, each linking the outermost portions of the land, as they ran along
the fringes of islands and rocks (skjaergaard), parallel to the Norwegian
coast. As a consequence of deploying this method, portions of the sea that
would have normally constituted the high seas, came to be included within
the territorial ambit of the Norwegian seas. Naturally, this resulted in a
couple of disputes. When British fishing boats found themselves in the thick
of one such dispute, the United Kingdom questioned the legality of the
Norwegian mechanism of ascertaining baselines, under international law. In
its judgment, the Court concluded that it was the outer extent of the fringe of
islands that bore relevance to establishing baselines. There was no role for
low-water lines of the mainland. The decision came to be on account of the
geographical structure. The general mode of determining baselines parallel
to the cost, termed the trace parallele, was inapplicable. If the traditional
rule was applied, there would be too many complicated geometrical
constructions on account of the indented structure of the coastal expanse,
and the islands that were placed bordering the coastal expanse.[981] With
other mechanisms being inapplicable, the construction of straight baselines
drawn from outer rocks was considered on account of the fact that the
general rule is that the territorial sea ought to follow the direction of the
coast.[982] The Court also went on to hold that the method followed by
Norway was accepted for several years, after having been consistently
applied. The United Kingdom had not protested its pursuance, either. There
was nothing in the attitude of the governments to depict a belief that their
method ran contrary to the principles of international law.[983] This led the
240

court to conclude and uphold the straight baseline principle as a valid

principle. In addition, the court also provided a list of criteria that need to
be fulfilled in order for the delimitation to apply. First, the drawing of the
baselines was not to depart from the direction of the coast, since there is a
close dependence of the territorial sea upon the land. Secondly, the
baselines ought to be drawn in such a way that the sea-area lying within it
should be closely linked to the land, subject to the regime of internal waters.
Lastly, states were allowed to include economic interests and
considerations peculiar to the region involved, as evidenced by longstanding usage.[984] The principles laid down by the court have now come
to be a rather integral part of international law, over a considerably short
span of time.
In addition to these principles, useful regard may be had to Article 4 of the
Geneva Convention on the Territorial Sea, 1958, which stipulates that the
straight baseline system could be deployed in the case of indented
coastlines, or, where there are skjaergaard, provided, that the direction of
the coast is adhered to duly, and the links between the seas within the lines,
and the land subject to the regime of the internal waters is sufficient. Article
7 of the 1982 Convention adds to this, allowing room for economic
considerations of long-standing extent, wherever applicable and wherever
necessary.
Following the enunciation of these principles, plenty of states began
deploying the system, even the United Kingdom, which utilized the rules in
respect of areas to the west coast of Scotland.[985] Nevertheless, in the
course of such usage, there are plenty of instances where states have used
the principles in instances that are not quite justifiable in the eyes of law.
[986] At any rate, jurisprudence as has been indicated above, has always
supported that the rules can be applied only in the wake of the fulfillment of
the requisite conditions as have been laid down and prescribed. In Qatar v.
Bahrain,[987] the Court reiterated the importance of fulfilling the
conditions as a pre-requisite to applying the principle, and also went on the
assert that the mere fact that a state deems itself a multi-island state, or a defacto archipelago, does not warrant that it may deviate from the set of
normally applicable rules, in order to determine baselines unless the
stipulated conditions are met. Article 8(2) of the 1982 Convention carries
forward Article 5(2) of the 1958 Convention, which indicates in no
uncertain terms, that where the consequence of the application of the
straight-baseline rule is such that a great part of the territorial seas or high
seas are enclosed within the ambit of internal waters, a right of innocent
passage is presumed to exist in such waters.
241

Bays and Headlands

Bays constitute portions on the coast, which is a structure that is surrounded
by land on three sides, with water on one. By nature, bays form on a
discordant coastline which implies areas where several bands of rocks run
perpendicular to the coastline. Plenty of issues arise in relation to bays,
specifically with regard to whether the waters of wide-mouthed bays need
to be considered on par with other zones of the sea adjacent to the coast, so
that the baseline of the territorial sea would be measured from such lowwater mark of the bays coast, and whether the straight-baseline method
could be put to use to close-off the mouth of the bay, and the territorial line
could be measured thence.[988]
A generally accepted notion was that the straight closing line could be used
across the mouths of bays. However, there was quite a bit of disagreement
as to the permissible width of the bays, beyond the realm of which the rule
could not operate.[989] Article 7 of the 1958 Convention on the Territorial
Sea provided that if the distance between the low-water marks of the natural
entrance points of a bay does not exceed twenty four miles, a closing line
may be drawn between the two low-water marks, and the waters so
enclosed thereby shall be deemed internal waters. As an alternative,
however, a straight baseline of 24 miles may be drawn, as explained by
Article 10 of the 1982 Convention.
The provisions are subject to exceptions in its application. Historical bays
are not subject to the rule under the aforementioned provisions. In terms of a
definitional assessment, historical bays refer to those that are deemed as
internal waters, by the coastal state, on account of historic rights as
supported by general acquiescence, as opposed to any particular principle
under the law.[990] International law is peppered with incidents indicating
such activity. Canada professed a claim that accorded the Hudson Bay such
a status, although this was met by considerable opposition from the United
States.[991] Another, is the claim over the Gulf of Fonseca, by some
American states, which led to the Land, Island and Maritime Frontier
Dispute.[992] The ICJ mentioned that the states involved and scholars and
commentators had met common ground in agreement that the Gulf was a
historic bay. However, the definition was couched in terms of the historical
situation that surrounded the Gulf, in that it constituted a multi-state bay.
There were no agreed, nor codified rules in relation to single-state bays.
[993] In considering the relevant specific historic circumstances, the Court
concluded that beyond the long-accepted three mile belt for the coastal
states, there were historic waters that were subject to a regime involving
242

co-ownership between three coastal states,[994] and went on to assert the

tripartite presence at the Gulf.[995] Other states vessels enjoyed a right of
innocent passage in the waters couched beyond the coastal belt with a view
to ensure access to any of the three states.[996]
Where waters are outside the statutory limits for inland waters, sovereignty
necessary to establish a title to the historic bay, is tantamount to the
exclusion of all foreign vessels and navigation from the area claimed. This,
of course, needs to be augmented by the acquiescence of states.[997] In a
case concerning the Cook Inlet, the United States Supreme Court went on to
hold that Alaska had not fulfilled the requisite terms, and that the inlet was
not regarded a historical bay under the Soviet or American, or Alaskan
sovereignty. As a consequence, the federal state bore the right to subsurface
the inlet.[998]
Another relevant issue was the claim made by Libya, over the Gulf of Sirte,
called Sidra, deeming it a historical bay. Consequently, it sought the
drawing of a closing line bearing nearly 300 miles in terms of length, in
1973. In retaliation, plenty of states protested, of which the United States
and states of the European Community were part.[999] The United States
was known to have asserted as the basis of its protest, the international law
standards of past, open, notorious and effective exercise of authority, and
the acquiescence of foreign nations,[1000] and indicated that it had, on
several different occasions, sent naval and air forces into the Gulf, in a bid
to maintain its opposition to the claim raised by Libya, and to continuously
assert that the portion of the seas that were the waters of the Gulf, were in
fact, constituent waters of the high seas.[1001]
Islands and Archipelagos
Islands are also governed by the general principles of law that have been
enunciated heretofore, in relation to the measurement of the territorial sea.
The 1958 Convention defined islands under Article 10(1) as areas that
consisted of naturally formed land, surrounded by water, which is
considerably higher than water at high tide. This has also been carried
forward under Article 121(1) of the 1982 Convention. The essence is, that
islands can also have a territorial seam a contiguous zone, an exclusive
economic zone and a continental shelf.[1002] When there is a continuous
chain of islands, each being less than about 24 miles apart from one another,
there occurs the creation of a continuous band of territorial sea.[1003]
Article 121, of the 1982 Convention, under clause 3, establishes that rocks
that cannot sustain human habitation or economic life of their own, shall not
have an exclusive economic zone or a continental shelf. Needless to say,
243

this provision is not without its own set of complex issues. There have been
questions aplenty about where the precise dividing line between rocks and
islands lies, and what the meaning of the phrase economic life of their
own actually is. Several states have come forth with rather debatable
claims.[1004]
Another area of academic relevance is Archipelagos. Archipelagic states
are essentially states comprised of many small archipelagos and groups of
islands. Many issues have crept up in the wake of efforts of such states in
drawing straight baselines around the outer limits of their islands, in an
attempt to box in their entire territorial expanse. This has been of
particular relevance in Indonesias context, where they have tried to create a
mechanism to keep all their island-appendages within the ambit of a straight
baseline. This has, obviously, met ample protest, on account of the fact that
rather large areas originally deemed the high seas, have begun falling under
the sovereign ambit of the state. Archipelagos were not dealt with by the
1958 Convention. But the 1982 Convention, under Article 46(a) defines an
archipelagic state as being a state wholly constituted by one or more
archipelagos, and may include other islands. The next clause, i.e., clause
(b), establishes that archipelagos are a group of islands, inclusive of parts
of islands, the interconnecting waters and other national features that are
closely related to the islands, waters, and other natural features, all forming
an intense geographical, economic and political entity, or which historically
have been regarded so. The definition is not entirely ambiguous, but the
question is as to whether they would include states within its ambit, if they
objectively fulfill the requisites under the provision, which, if so, would
bring within the definition, Japan and the United Kingdom.[1005] In Qatar
v. Bahrain,[1006] Bahrains chief contention was that it constituted a de
facto archipelago, and therefore, it could declare itself an archipelagic state
under the ambit of the 1982 Convention, and allow the straight baselines
rule to apply to itself as under Article 47. The Court went on to note that the
claim was not raised as part of Bahrains formal submissions to the court,
and therefore, it had no obligation to comment or decide upon the issue.
Article 47 outlines the basic rule that a state may draw a straight baseline
joining the outermost points of all the outermost islands, and drying reefs of
the archipelago. The line thence drawn would function as a mechanism to
serve as the baselines for all purposes. Article 47 encourages the fulfillment
of certain conditions while the measurement is carried out. First, an
archipelagic State is permitted to draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main
244

islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1. Secondly, the length
of such baselines shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles. Third, the
drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago. Fourth, such baselines shall not
be drawn to and from low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level have been built on them
or where a low-tide elevation is situated wholly or partly at a distance not
exceeding the breadth of the territorial sea from the nearest island. Fifth, the
system of such baselines shall not be applied by an archipelagic State in
such a manner as to cut off from the high seas or the exclusive economic
zone the territorial sea of another State. Sixth, if a part of the archipelagic
waters of an archipelagic State lies between two parts of an immediately
adjacent neighbouring State, existing rights and all other legitimate interests
which the latter State has traditionally exercised in such waters and all
rights stipulated by agreement between those States shall continue and be
respected. Seventh, for the purpose of computing the ratio of water to land
under paragraph l, land areas may include waters lying within the fringing
reefs of islands and atolls, including that part of a steep-sided oceanic
plateau which is enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the plateau. Eighth, the
baselines drawn in accordance with this article shall be shown on charts of
a scale or scales adequate for ascertaining their position. As an alternative,
lists of geographical coordinates of points, specifying the geodetic datum,
may be substituted. Ninth, the archipelagic State shall give due publicity to
such charts or lists of geographical coordinates and shall deposit a copy of
each such chart or list with the Secretary-General of the United Nations.
Within the baselines so drawn, all the water enclosed, are called the
archipelagic waters, as under Article 50, and the state has sovereignty over
these waters, as under Article 29, with due respect to agreements and
traditional fishing rights, as required by article 51. All states vessels enjoy
the right of innocent passage through archipelagic waters, as seen under
Article 52, and the same runs for all aircrafts in respect of the airspace
above the archipelagic state, as explained under Article 53. These
provisions have all attained the status of customary international law, as
was pointed out by the United States in its response to Indonesias closure
of the Sunda Strait and the Lombok, which indicated that the 1982
Convention, in its archipelagic provisions, actually reflected customary
245

international law. Therefore, any intervention with such innocent passage

would amount to a case of violation of international law.[1007]
The Territorial Sea
Sovereign Control
Territorial waters are defined as a belt of coastal waters extending up to 12
nautical miles, which is an equivalent to 22 kilometers, stretching from the
baseline of a coastal state.[1008] It is regarded as the sovereign territory of
the state, and foreign ships, both military and civilian in nature, are allowed
a right of innocent passage through it. The right of sovereignty extends to the
airspace above, and the seabed subjacent to it.
For a considerable amount of time, there has been ample disagreement as to
the extent of the territorial sea. In early days, the cannon-shot rule was put to
use in order to determine the width of the territorial sea. This later changed
into the 3-mile rule, which occurred somewhere in the 19 Century. The
United States and the United Kingdom, and any deviation therefrom could
only see justification if they bore historical rights or received general
acquiescence, as was the case in the context of the Scandinavian assertion,
seeking a claim over territorial sea as extending up to 4 miles.[1009]
Several states advanced their own claims, each asserting that they had
sovereign rights and jurisdiction over a certain expanse over the sea that
they deemed, their territorial sea. States sought rights over vast expanses of
the sea, for fishing, for customs and immigration reasons, for exploration
among many other reasons. After the First World War, there was a clear
distinction made, between claims sought to enlarge the width of the
territorial sea, and in relation to specific zones in the sea. The three mile
rule did not see the light of day, particularly on account of other contending
assertions overtaking its practical applicability. The 1958 Convention did
not broach the issue, because there was no agreement amongst the states.
The 1960 Geneva Conference rejected the proposal advanced by the United
States and Canada, which required the creation of a six mile territorial sea,
along with an exclusive fisheries zone extending for another 6 miles.[1010]
The 1982 Convention notes that states have the right to establish the expanse
of the territorial sea, extending not beyond 12 nautical miles as commencing
from the baselines. State practice has been in conjunction with the rule.
[1011]
When there ate states with opposite or adjacent coasts,[1012] the question
of delimitation of territorial seas and their extent therein, poses a different
set of issues. Article 15 of the 1982 Convention asserts that there is the
th

246

basic 12 nautical mile limit, along with which, where there is no agreement
that has been arrived at between the state, neither state is allowed to extend
its own territorial line beyond the median line drawn therein, such that
every point of such line is equidistant from the nearest point on the
baselines, from which the territorial sea is measured.[1013] The provision
has no application in cases where it is necessary to delimit the territorial
seas in a different manner, stemming perhaps from any historical titular
right, or, under any special circumstances. In Qatar v. Bahrain,[1014] it
was held that Article 15 was a codification of a norm of customary
international law.[1015] It was called the equidistance or special
circumstances principle, and the Court asserted that the most logically
accepted and widely practiced approach was to first draw provisionally, an
equidistance line, and then, to consider whether that line ought to be
adjudged in the light of special circumstances.[1016]
The territorial sea bears considerable juridical overtones.[1017] Plenty of
theories have been advanced, in a bid to explain the legal character of the
territorial sea of the coastal state. Some deem it fit to consider the territorial
sea a part of res communis, subject to certain rights reserved at the behest
of the coastal state and its territorial rights of sovereignty, along with the
permissible exercise of the right of innocent passage by any foreign vessel.
[1018] Despite the existence of such theories, it is indisputable notion that
coastal states enjoy sovereign rights over their maritime belts, and can
exercise extensive jurisdictional control in keeping with international law.
There is only one restriction on such a sovereign power as is wielded by the
coastal state, which is the right of vessels belonging to other states, to
innocent passage through the territorial sea of the coastal state. The
territorial sea is thus, different from the internal waters of the state, in that
the latter can enjoy untrammeled rights of sovereignty, completely devoid of
exception.
Originally, Articles 1 and 2 of the Convention on the Territorial Sea, 1958,
which have subsequently been carried forth onto the 1982 Convention,
under Article 2, state that the coastal state has sovereignty rights over its
territorial sea, the airspace above and the seabed and subsoil subjacent
below. This is, of course, in keeping with the core tenets of international
law and other provisions of the convention itself. The territorial sea, thus, is
invariably an important component of the land territory, to which the state is
itself, bound, therefore, a cession of land would automatically be inclusive
of any territorial waters appended to it.[1019] Coastal states are free to
exclude foreign nationals and fishing vessels from entering its territorial
sea, unless it is bound by an agreement to the contrary. It may also prohibit
247

and exclude foreign nationals from dealing with coastal trading or cabotage,
and may subsequently reserve the activities exclusively for its own citizens.
Coastal states are also given the right to exercise control over customs and
security issues. All of these powers, and the general right of a coastal state
in exercising its sovereignty and jurisdictional control, are entirely subject
to the municipal laws of the state, and the international legal realm and all
its restrictions.[1020]
Innocent Passage: An exception to
Sovereignty
As has been explained heretofore, the sole exception to territorial
sovereignty is the right of innocent passage, which allows foreign merchant
ships to pass unhindered through the territorial sea of a coast. This rule does
not extend to warships, and has been accepted as a part of customary
international law. The doctrine is not a watertight compartment of sorts,
since it is open to interpretation and evaluation. What needs to be
ascertained is to what extent the passage itself is innocent.[1021] The right
of innocent passage was explained under Article 14 of the 1958 Convention
on the Territorial Sea, which states that the coastal state must not in anyway,
hamper innocent passage, and, must publicize danger to navigation as may
arise in the territorial seas, of which it is aware. In terms of a definition,
passage itself implies navigation through the territorial waters of the sea.
The idea is to assist the process of crossing the seas, without entering the
internal waters of the state. The process may include temporary stoppages,
only in the event that either, it is in the course of ordinary navigation, or,
there is some hindrance to ordinary navigation, such as by way of a case of
distress or force majeure.[1022] Naturally, a coastal state cannot impose
charges for passage, unless it is a payment to be tendered in the course of
rendering a service. Ships engaged in passage are supposed to comply with
all the regulations of the coastal state, covering obligations such as
navigation in consistency with international law. Innocent passage,
essentially refers to passage that is not antagonistic to the peace, security
and order of the coastal state, and all passage that is in keeping with the
rules, regulations and laws as dictated by the coastal state. Submarines are
also under an obligation to obey these rules, particularly in that they have to
depict their flag besides navigating on the surface. Anything in contravention
of this expected standard indicates the end of innocence in passage.
When such passage ceases to be innocent, the coastal step is fully permitted
to take all the necessary steps to prevent it, or to repel it. Where ships are
seen to proceed towards the internal waters, the coastal state is free to act in
248

a manner that shall put to an end, any conduct that amounts to a breach of the
rules of admission of ships into the territorial waters. In the light of such
security concerns, the state is entitled to suspend all innocent passage, until
the threat to its security lifts. The suspension ought to be published, and
should keep out of all international straits over which it cannot lawfully
extend.
The 1982 Convention elaborates upon the principle under Article 19(2),
where it explains certain examples of prejudicial passage. Among these
examples, are included a few such as the use of, or threat to use force, use
of weapons and indulgence in weapons practice, spying, breach of customs
or fiscal regulations or sanitation and immigration regulations, pollution
undertaken willfully, fishing, research and survey activities and intervention
with coastal communications. It also finishes off with a considerably wide
clause, stating any activity not having a direct bearing on passage. By
indicating a fairly large list, the provision points in the direction of the fact
that it is the violating state that has an obligation to prove that it did not
violate innocent passage, rather than, in fact, the coastal state suggesting that
the passage was not innocent. Article 24 of the 1982 Convention stipulates
that coastal states are not to hamper the right of innocent passage, by coming
down with requirements and rules and clamping them on the state, causing in
the process, the net effect of actually impairing, or sometimes, even denying
the right of innocent passage. Article 17 of the erstwhile 1958 Convention
on the Territorial Sea, subsequently incorporated under Article 21(1) of the
1982 Convention, stated that all foreign ships, in the course of their exercise
of innocent passage, are under an obligation to comply with the rules, laws
and regulations as enacted by the coastal state, specifically those concerning
navigation and transportation. Article 21(1) augmented this rule by
specifying that the coastal state could adopt laws and regulations in relation
to the safety and navigation of maritime traffic; the protection of
navigational aids and facilities and other facilities or installations; the
protection of cables and pipelines; the conservation of living resources of
the sea; the prevention of infringement of the fisheries laws and regulations
of the coastal state; the preservation of the environment of the coastal state
and the prevention, reduction and control of pollution thereof; the marine
scientific research and hydrographic surveys and the prevention of
infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal state. When a breach of such laws and rules
occurs, the offending state is rendered liable to prosecution. However, a
breach of the law does not take away the innocence from the passage, except
where such breach is accompanied by the infringement of article 19.
249

When the ships involved are wartime ships, traversing waters in peacetime,
there is much controversy on the position of law.[1023] The subject was
entirely omitted by the 1958 Convention on the Territorial Sea, and was
brought up for discussion in a series of articles called the Rules applicable
to all ships. Scholars have asserted that warships are included, by pure
inference, under the ambit of this rule, but, myriads of other scholars believe
that the issue cannot be deemed to be covered with omission and inference,
considering how important the principle itself is. Several states had
reservations to the 1958 Convention on the Territorial Sea, in the process
rejecting the principle of innocent passage in its applicability to warships
during peacetime. Most Western states campaigned for applying the innocent
passage rule to warships, considering their powers over the naval side. As
a natural corollary, opposition arrived from the quarters involving states
belonging to the Third World. With the Cold War drawing to an end, in
1989, the United States and the USSR, issued what was called the Uniform
Interpretation of the Rules of International Law Governing Innocent
Passage.[1024] The rules were an affirmation of the extant rules of
international law, as enumerated under the 1982 Convention. The rules
indicate that all ships, inclusive of warships, regardless of cargo, armament,
or means of propulsion, enjoy the right of innocent passage through the
territorial sea in accordance with international law, for which, neither prior
notification nor authorization is required. The rules also explain that the
ships are all in innocent passage, when they are not involved in any activity
as under Article 19(2). In addition, the rules also indicate that all ships in
passage are under an obligation to comply with the laws of the coastal state,
as in line with articles 21, 22, 23 and 25 of the 1982 Convention, provided,
of course, that such laws and regulations have no effect of denying or
impairing the exercise of the right of innocent passage. By stating thus, in
effect, these rules have watered down the expanse of Article 19(2), into
being exhaustive. Therefore, a ship that passes through the territorial sea
that is not involved in any of the activities enumerated therein is fully in
innocent passage. By not segregating the rules as applicable to one kind of
ships and not to another kind, it is ensured that even warships enjoy a right
of innocent passage through the territorial sea, and there is no need for prior
notification or authorization whatsoever.[1025]
Crimes, Jurisdictional Rights and
Foreign Ships
When a ship passes through the territorial seas of a state, the coastal state is
free to exercise criminal jurisdiction in pertinence to effecting the arrest of
any person, or in relation to conducting investigative activities in any issue
250

relating to a crime committed on board the ship, only in specific situations.

Article 27(1) of the 1982 Convention, which was originally Article 19(1) of
the 1958 Convention on the Territorial Sea, provides for these specific
situations, which are four in number: primarily, if the consequences of the
crime extend to the coastal state, or, secondly, if the crime is of a nature that
is likely to disturb the peace of the country or the good order of the
territorial sea, or, thirdly, if the assistance of the local authorities has been
requested by the master of the ship or by any diplomatic agent or consular
officer of the country of the flag state, or, lastly, if such measures are
necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
If the ship passes through the territorial sea, after having left the internal
waters of the coastal state, then the state has the authority to act in whatever
manner as prescribed by its laws in relation to arrest or investigation on
board a ship, and is not curbed by the limits enshrined under Article 27(1).
There is, however, a limit on the authorities of the coastal state, in that they
cannot proceed to act where the crime was committed before the ship
entered the territorial sea, providing the ship is neither entering, nor has
already entered the internal waters. Article 28 of the 1982 Convention
further puts a bar through article 28, which stipulates that the coastal state
should not stop or divert a foreign ship, passing through its territorial sea
for the purpose of exercising civil jurisdiction in relation to a person on
board the ship, nor levy execution against or arrest the ship, unless there are
obligations assumed by the ship itself in the course of or for the sake of its
voyage through the coastal states waters, involved, or, unless the ship
passes through the territorial sea on its way from the internal waters. These
rules do not put a spoke in the right of a state to levy any execution against
or to arrest, for the sake of any civil proceedings, a foreign ship lying in the
territorial sea or passing through the territorial sea after leaving the internal
waters, as was explained under Article 20 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone.
When it comes to jurisdiction of a coastal state, warships are immune from
the jurisdictional ambit of the coastal state. This also goes for all
governmental ships operated for non-commercial reasons. However,
Articles 29 to 32 of the 1982 Convention, as a reproduction of Articles 21
tp 23 of the 1958 Convention, create a legal regime, where it is also
possible that they may be asked to leave the territorial seas immediately for
any act of breach of rules governing the passage, and, responsibility will be
clamped down on the flag state, which will consequently bear all charges
for loss or damage suffered as a result of their acts.
251

Maritime Delimitation
The delimitation of the territorial sea, in relation to that portion of the
territorial sea between adjacent or opposite states, is based on the rule of
equidistance, or the rule of special circumstances. This was originally
provided for under Article 12 of the 1958 Convention on the Territorial Sea,
and was brought into Article 15 of the 1982 Convention on the Law of the
Sea. Delimitation of the continental shelf and the delimitation of the
exclusive economic zone share a close relationship between adjacent or
opposite states.[1026]
International Straits
As a rule, there shall be no suspension of the innocent passage as accorded
to foreign ships through international straits, i.e., straits used for
international navigation, between one part of the high seas and another part
of the high seas, or, the territorial seas of a foreign state. This was
enunciated under Article 16(4) of the 1958 Convention, and was also given
a clarifying dimension by the Corfu Channel Case.[1027] The case
involved a couple of British warships that were passing through straits,
when they were fired upon by Albania. A couple of months after that
incident, a force of cruisers set sail through the North Corfu Channel, and
after striking mines, two of these cruisers were destroyed. The British
authorities then swept the Channel, approximately three weeks after the
incident, to clear it of all the mines put to use. The Court observed that
states in peacetime have a right to send their warships through straits used
for international navigation between two parts of the high seas without the
previous authorization of a coastal state, provided that the passage is
innocent. The Court also noted that the minesweeping activities as embarked
upon by the British was a violation of Albanian sovereignty, though the
previous passages by the British naval fleet were legal.
In keeping with the legal issues emanating from the dispute, the 1982
Convention emerged with a new regime for straits put to use for
international navigation. The core principle went on to reaffirm that the
legal status of the waters belonging to the international straits, were
unaffected by the provisions pertaining to passage, as explained under
Articles 34 and 35. Straits were covered by a new right of passage being
granted for states, for the sake of international navigation between a part of
the high seas or an exclusive economic zone, as explained by article 37.
Passage through the strait, to enter or leave a state bordering the state is not
prevented, and, there is room to exercise the freedom of navigation and
overflight for the sake of continuous and speedy transit of the strait itself, as
252

enunciated by Article 38. Article 44 interjects with the rule that states
bordering straits in question are not to hamper or suspend transit passage.
The right over the international straits is not absolute, it is subject to three
exceptions, namely, one, under Article 36, where a route exists through the
strait, through the high seas, or economic zone; two, as under Article 38(1)
in the case of a strait formed by an island of a state bordering the strait and
its mainland where there happens to be seaward of the island, a route
through the high seas or economic zone of similar navigational convenience;
and, lastly, under Article 45, where straits connect an area of the high seas
or economic zone with the territorial sea of the third state. Ships and
aircrafts are obligated to observe the pertinent international regulations. At
the same time, they are under an obligation to abstain from indulging in all
activities aside of those that are incidental to their normal methods of
continuous and expeditious transit, unless otherwise rendered necessary on
account of distress and force majeure, as explained under Article 39. In
principle, there is no formal mandate for innocent transit passage. But,
because of Article 38 and 39 and the effect emanating therein, it seems as
though there is a right of transit passage, subject to the same constraints.
Under article 45, the innocent passage regime will bear application in
relation to straits put to use for international navigation, as excluded from
the transit between a part of the high seas, or the economic zone and the
territorial seas of a foreign state. In all these cases, there will be no right of
suspension of the right to innocent passage.[1028] The transit passage
regime permits the passage of aircraft, and, perhaps for underwater
submarines. There are lesser restrictions on the conduct of ships during
passage, and consequently lesser power for the coastal state to clamp down
on control of passage, as opposed to instances of innocent passage.[1029]
Transit passage cannot be suspended for security, or for any other reasons,
as given under Article 44.
Since state practice is still rather unclear, it is still unclear whether the right
of transit passage has evolved into customary international law. Some states
have asserted explicitly, the rights of passage through international straits,
while some have not been so clear in their actions.[1030] Several
international straits are subject to special regimes, and as a consequence,
these provisions do not apply to such straits.[1031] A case in point is the
Montreux Convention of 1936, dealing with the Bosphorous and
Dardanelles Straits, which provided for the exercise of complete freedom
of transit in respect of merchant vessels during peacetime. It also permitted
freedom of transit during daytime for warships that gave prior notification to
Turkey, before their travel.[1032]
253

Contiguous Zones
Over the years, it has been found that states have asserted claims over
specific zones of the high seas, seeking to exercise control and certain rights
over these parts. With these claims coming into place, considerable issues
came to fore in relation to the extent of freedom of the high seas, because the
jurisdictional control of a couple of coastal states began eating into areas of
the high seas adjoining the territorial sea, of course, only for specified
purposes. This led to the creation of what is known as the contiguous zone,
considering that it comprises the region contiguous with the territorial sea of
the coastal state. The restriction of the freedom of the high seas in these
regions occurs in a bid to pursue varied interests of different states, such as,
the prevention of customs infringements, immigration laws of the coastal
state, conservative measures embarked upon by the coastal states in respect
of different species of marine life, sanitary rules of the coastal state, or even
in pursuit of preserving the coastal states interests in the marine resources
in the zone, as exclusive.[1033]
The purpose of delineating a contiguous zone is to ensure the exercise of a
states interests in the zone concerned, without compromising on the extant
law relating to demarcation of territorial waters by extending it into the high
seas. If such a consequence were to be permitted to exist as it emanates,
there would virtually be no end to impinging upon the high seas, perhaps
leading to an anomalous instance where only coastal states would hold
rights over the seas, claiming large expanses as belonging to them under the
titular head of territorial sea. Therefore, the creation of the contiguous zone
has allowed a finding of an appreciable middle ground between the coastal
states interests in protecting its vital and important interests without
expanding on the territorial seas extent, and, the interests of other sea-faring
nations in maintaining the freedom of the high seas, balancing divergent
claims in the process. While this has been the direct implication of the
contiguous zone and its existence, one cannot ignore the fact that the
extension of sovereign rights to an area outside the territorial sea has in fact,
been deemed as affecting municipal law, and a pursuance of attempts to
maintain and hone economic interests of coastal states in relation to
resources.
Starting out as early as in the 1930s, the idea of creating the contiguous zone
emanated from the hand of Gidel, who suggested the doctrine as practicable.
[1034] The principle was then incorporated under Article 24 of the
Convention on the Territorial Sea, which spoke of the fact that in the zone of
the high sea contiguous with the territorial sea, the coastal state may
254

exercise control necessary to prevent infringement of customs, fiscal,

immigration or sanitary regulations within its territorial sea, and to punish
infringement of the aforementioned regulations committed within its territory
or territorial sea. The provision markedly differentiated claims of full
sovereign rights from rights enunciated above, by referring to the zone as a
part of the high seas, and by explicitly limiting the extent of use for the two
above listed purposes. Contiguous zones are not automatically appended to
the territorial sea. They have to be specifically claimed, as opposed to the
territorial sea which naturally appends to the coast.
With the 1958 Convention laying down specifics, there emanated a new
trend since. Before the 1958 convention, the importance attached to sanitary
and immigration laws as reasons for the enjoyment of rights over the zones
of the high seas were not practically enforceable. Customs zones, however,
have had relevance and considerable importance in History, and constitute
customary international law. State practice also supports this trend,
considering how several states have legislated on the issue, passing laws
seeking to enforce customs regulations over several years, well outside the
ambit of their territorial waters and within certain areas, in a bid to
suppress smuggling and black-marketing, when the territorial seas were
restrictively limited to 4 miles.[1035] At that juncture, contiguous zones
were limited to 12 nautical miles from the baselines, which, at present, is
the measurement for the territorial sea. This led to the conclusion that if a
state had already laid claims to the territorial sea as extending up to 12
miles, they would not have any right to lay claims over a contiguous zone.
As a consequence of this restriction, and in addition to restricting
jurisdictional control only to the issues as enunciated under Article 24 of the
1958 Convention on the Territorial Sea, the importance of the contiguous
zone went downhill in contemporary international relations.
The concept was salvaged with the onslaught of Article 33 of the 1982
Convention on the Law of the Sea, which allowed a state to claim a
contiguous zone extending up to as much as 24 nautical miles from the
baseline. Though the expanse was increased, the grounds for laying those
claims were retained, as were enunciated under the 1958 Convention on the
Territorial Sea. Another point of difference between the provision as it
existed under the 1958 Convention and the prevalent one as under the 1982
Convention on the Law of the Sea is the fact that the former construed the
contiguous zone as part of the high seas. The latter convention construes the
contiguous zone as constituting a part of the exclusive economic zone,
considering that Article 55 of the 1982 Convention asserts that the exclusive
economic zone is the area beyond and adjacent to the territorial seas.
255

The Exclusive Economic Zone

As article 55 of the 1982 Convention defines the term, an exclusive
economic zone simply refers to the area beyond and adjacent to the
territorial seas. The zone has evolved as a consequence of a considerably
pursued set of tentative claims in pertinence to fishing zones.[1036] The
process crystallized finally in the drafting of the 1982 Convention, and
stands out as marking a compromise between states that demand a 200-mile
long territorial sea and the states that wish to have restricted coastal
sovereignty over the seas.[1037] The 200 nautical mile limit for the
exclusive economic zone came to be on account of several states clamouring
for exclusive fishing zones.
While the 1958 Convention on the Territorial Sea loosely left the issue
allowing the exercise of sovereignty in restricted instances in the contiguous
zone, as under Article 24, virtually nothing was done in order to explain and
lay down the expanse of the region. The Convention did not permit
exclusive fishing rights in the contiguous zone. Since as early 1960, states
began claining exclusive fishery zones, well beyond the expanse of their
territorial seas.[1038] Despite this, a couple of states did assert their claims
over the sea, seeking fishing rights over large expanses of the sea. The
European Unions assertion of its claims came to light through their
European Fisheries Convention, 1964, which was implemented by enacting
the Fishing Limits Act, 1964, in the United Kingdom. Both pieces of
legislation provided for the right to fish and to permit exclusive jurisdiction
in issues relating to fisheries, extending into a 6-mile wide belt, from the
baseline of the territorial sea. They also stated that within the belt extending
from 6 miles and 12 miles from the baseline, other states privy to the 1958
Convention on the Territorial Sea were entitled to fish, with the proviso that
they should have habitually pursued fishing interests between January, 1953
and December, 1962. The underlying idea was to ensure a balance between
the interests of coastal states and other states who enjoyed customary fishing
operations in the relevant area. Eventually, since states came to accept the
fact that a 12-mile expanse for the exclusive fishing zone, either for
themselves or other states, the rule emerged as a part of international law.
In the Fisheries Jurisdiction Cases,[1039] the meaning of the concept of
the fishing zone was explained as being the area in which a state may assert
a claim of exclusive jurisdiction, independent of its territorial sea for the
purpose. The court identified that the norm had attained the status of
customary international law, specifically after the 1960 Geneva Conference,
and also stated that the extension of that fishing zone up to a 12 mile limit
256

starting from the baselines, was now a generally accepted norm. While this
is still a norm accepted without any doubt, there is still an unanswered
question as to whether the zone beyond the 12 mile expanse exists or not.
Several proposals began making their appearance, where states submitted
their issues relating to the long-term effects of the depletion of fish stocks in
and around their coastal states. Of these claims, in 1972, the claim raised by
Iceland indicated that it asserted its rights over an expanse of 50-miles into
the sea, under the guise of an exclusive fishing zone. This led to the case
where the UK and the erstwhile Federal Republic of Germany made a
reference to the ICJ, asking the court to specifically adjudicate upon the
status of Icelands claim, in keeping with the requirements of international
law. In dealing with the dispute, the court did not address the question.
Instead, it went on to hold that Icelands fishing regulations that extended to
the zone, did not bind the UK and the Federal Republic of Germany. This
was essentially on account of the fact that neither state acquiesced in the
regulations and their applicability. Nevertheless despite there being no
explicit ruling on the issue raised, by implication, the decision of the ICJ
came across as being based on the factual notion that there was no rule in
international law that allowed for the establishment of a 50-mile fishing
zone. On the other end of the spectrum, it appeared clearly that there was no
prohibition on claims extending beyond 12 nautical miles, and if anything,
the validity of these claims would hinge upon the factual aspects of the case,
and the extent of recognition offered by other states. The Court also
emphatically mentioned the importance of the rule of preferential rights,
which constituted a part of customary international law. Preferential rights
were explained as arising where the coastal state was in a situation
involving special dependence on the coastal fisheries and fishing resources
as they existed in the coastal waters of the state.[1040] Though the concept
was given much value by the ICJ, it was overtaken by developments that
emerged in the courses of the UN Conferences, and the final product in the
form of the 1982 Convention on the Law of Sea. The subject as it stands, is
now dealt with under Article 55 of the 1982 Convention, which states that
the exclusive economic zone is an area that is beyond, and adjacent to the
territorial sea, but subject to the specific legal regime as is established
under the Convention. Following at its heels is Article 56, which states that
coastal states, inter alia, enjoy certain rights in relation to the exclusive
economic zone. Clause (a) states that it can enjoy sovereign rights for the
sake of exploring and exploiting, conserving and managing natural
resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil and with regard to other activities
257

for the economic exploitation and exploration of the zone, such as the
production of energy from the water, current and winds. Clause (b) permits
the exercise of jurisdiction in relation to the architecture and use of artificial
islands, installations and structures, marine scientific research and in
relation to the protection and preservation of the marine environment.
As for the expanse of the exclusive economic zone, Article 55 states that the
zone commences from the outer limit of the territorial sea and Article 57
restricts the maximum extent by establishing that the exclusive economic
zone shall not extend beyond 200 nautical miles from the baselines, from
which the expanse of the territorial sea is measured. That leaves a
calculated expanse of 188 nautical miles as being the expanse of the
exclusive economic zone, in all cases where the territorial sea extends up to
12 nautical miles. Delimitation of the expanse is important in all cases
where the expanse of the relevant waters as between neighbouring states fall
less than 400 nautical miles. Article 121 (3) ensures that islands also have
access to an exclusive economic zone, except in cases where they comprise
of nothing more than a couple of rocks, and are unfit for human habitation.
In the exclusive economic zone of a state, other states have certain rights
and duties as under Article 58. The rights permit the freedom of navigation
as it is in the case of the high seas, and the freedoms of over-flight and to lay
submarine cables and pipelines. Article 58 dictates that while exercising
their rights it is necessary that states respect the rights, duties and laws of
the coastal state. In the event of a conflict in relation to the question of the
attribution of rights and jurisdictional competence in the zone, the dispute is
resolved entirely on the basis of equity, and in keeping with the factual
circumstances. Article 60(2) elaborates on the fact that in the exclusive
economic zone, the coastal state is entitled to exercise jurisdictional control
in respect of applying customs laws, orders and regulations in pertinence to
artificial islands, installations and structures. Where other parts of the
exclusive economic zone are concerned, this right does not exist, as was
explained in the M/V Saiga (No.2) (Admissibility and Merits) case.[1041]
The International Tribunal for the Law of the Sea, in pursuance of this line
of law, explained that Guinea was on the wrong side of the law by seeking
to apply its customs law outside the ambit of the permissible extent of the
exclusive economic zone.
States world over, for a considerable amount of time, have claimed
exclusive economic zones that extend up to 200 miles.[1042] Several other
states that have not raised a claim, have instead asserted certain fishing
zones as belonging to them.[1043] With such claims, the exclusive economic
258

zones and the claims of states in relation to them have led to the creation of
a place in customary international law, for the inclusion of the existence of
the exclusive economic zone. In the Libya Malta Continental Shelf Case,
[1044] the ICJ laid down in no uncertain terms, that the institution of the
exclusive economic zone, by practice, has entered the domain of customary
international law. In addition, states have laid claims to other zones of the
seas. Some of these claims include the Canadian claim over a 100-mile
zone, expanding along the Arctic Coastline, as being a special, pollution
free area.[1045] Security and neutrality zones, though few and far between,
have also evolved with time, at the behest of several states buttressing their
claims with their own assertions, but havent quite been welcomed.[1046]
Bilateral agreements have also emerged between states, in a bid to ensure
no room for disputes. A case in point is the agreement entered into between
the United States and erstwhile USSR, titled the US-USSR Maritime
Boundary Agreement, in the year 1990. The agreement is a clear delineator
of rights, where in keeping with equality as the basis of the agreement, each
state is permitted to exercise sovereign rights and jurisdiction in a special
part of the other states exclusive economic zone, in a bid to see to it that all
waters within the expanse of 200 nautical miles inevitably remain within the
resource pool of both states.[1047]
Nevertheless, the expanse of the exclusive economic zone has always been
a bone of contention between the states.[1048] The infamous Cod Wars
between the United Kingdom and Iceland between the 1950s and the 1970s,
relating to fishing rights in the North Atlantic are an example. In 1972,
Iceland unilaterally declared its claim over an exclusive economic zone as
extending beyond its territorial waters, and then announced plans to cut
down on over-fishing with a quota system and a coast guard, which resulted
in a couple of net-cutting events with British trawlers fishing in those areas.
This then led to the deployment of Royal Naval warships and a series of
tug-boats to function as a deterrent to any future harassment of British
fishing crews. Finally, the dispute ended in 1976, after Iceland raised a
threat to close a NATO base, in a bid to retaliate against Britains act of
using naval vessels within the 200 nautical mile range. After 1976, the
British government conceded, agreeing that British vessels would not fish in
the disputed zone. The dispute raised by both Norway and Russia in respect
of an exclusive economic zone in relation to the Spitsbergen archipelago,
since it adversely impacts the Russian exclusive economic zone due to the
treaty status is another example. Eventually, in September 2010, a treaty
was signed in Murmansk, where both states endeavoured to settle the
boundary issue.[1049] Presently, plenty of ongoing disputes relating to
259

exclusive economic zones have come to be, such as the issue over the South
China Sea, with competing claims from Indonesia, China, Taiwan,
Philippines, Vietnam, Malaysia, Cambodia and Singapore; between Turkey
and Greece over the expanse of the continental shelf and the exclusive
economic zone; between Italy and Slovenia over Croatias ecological and
fisheries protection zone, that threatened Croatias accession to the
European Union; between the United States and Canada in respect of the
Beaufort Sea which has been touted to be a considerably resourceful oil
reserve and the French claim over a part of the Canadian exclusive
economic zone for Saint Pierre-et-Miquelon, on the basis of a new
definition of the continental shelf and the exclusive economic zone as
between both countries, given that Saint Pierre-et-Miquelon is surrounded
entirely by the Canadian exclusive economic zone. Permanent ice shelves
extending beyond the coast lines have also raised many a question in this
regard.[1050]
The Continental Shelf
The continental shelf refers to the extended perimeter of each continental
landmass. It also includes associated coastal plains, and was a part of the
continent during the original glacial period, and was undersea during the
interglacial periods. It essentially refers to the ledges that extend from the
continental land, into the seas, covered by a comparably shallower layer of
water, and eventually fall away into the depths of the ocean.[1051] These
ledges constitute approximately 7 or 8% of the total ocean expanse. The
width of the continental shelf varies considerably. Some areas may have no
shelf at all, as is the case particularly where the forward edge of advancing
oceanic plates dive beneath the continental crust in an offshore sub-duction
zone. This is a common facet off the coast of Chile and the West coast of
Sumatra. The largest shelf is the Siberian Shelf, found in the Arctic Ocean,
stretching over an expanse of 1500 kilometers in width. The South China
Sea lies over another extensive area of continental shelf called the Sunda
Shelf, which also joins Borneo, Sumatra, and Java to the Asian mainland. In
the case of the North Sea and the Persian Gulf, the entire area underwater
comprises the shelf. However, in the United States, the continental shelf is
less than five miles wide. The most important facet of the continental
shelves is that they are extremely rich in oil and gas resources, and are also
considerably rich in term of marine resources such as fish and the like.
As a consequence of the value attached to the continental shelf, in terms of
the benefits a state may derive from deploying it to its advantage, several
states lay claims to considerable expanses of the sea, with the end of the
260

Second World War. Slowly, the continental shelf was drawn out of being a
continued part of the high seas that was open for access by all states for the
sake of exploitation, and became a part of state owned portions of the sea,
exclusive to the needs of the coastal state. The earliest of these attempts was
the Truman Proclamation, 1945,[1052] which indicated the technological
abilities that allowed the exploitation of the resources of the continental
shelf, and the requirement to establish a recognized jurisdictional regime
over the resources. The proclamation also declared that coastal states were
entitled to have such jurisdictional control for various reasons, namely, the
extent of utilization and conservation of subsoil and seabed resources of the
continental shelf zone hinged heavily upon the cooperation from the shore
itself; the fact that the shelf itself, may rightfully be construed as an
extension of the continental land of the coastal state and therefore, the
resources therein were an obvious extension of the deposits within the
territorial waters itself; and, that since the coastal state has its own band of
security considerations, it would definitely be interested in activities
happening off its shores in connection with the access and utilization of the
resources themselves.[1053] The proclamation led to the subsequent
announcement by the US government, which indicated that it construed the
natural resources of the subsoil and seabed of the continental shelf beneath
the high seas, but contiguous to the coasts of the United States as
appertaining to the United States, subject to its jurisdiction and control.
[1054] It also asserted that it would not affect the status of the waters above
the continental shelf as they were the high seas.
Spurred into action by the proclamation, a whole lot of other states also
came forth with claims to continental shelves. Argentina claimed the
continental shelf along with the waters and airspace above, which was also
a course followed by El Salvador. Chile having no continental shelf of its
own, as was also the case with Peru, both states sought to claim sovereignty
over the seabed, subsoil and all waters around their coasts extending up to
200 miles. The claims, however, were protested against by other states.
[1055] With debates running rife amongst states, the 1958 Geneva
Convention on the Continental Shelf emerged as the law on the position.
[1056] The rights of the coastal state, in relation to the area of the
continental shelf that constitutes a natural prolongation of its land territory
into and under the sea exist ipso facto and ab initio, on account of its
sovereign control over the land and as an extension of it in an exercise of
sovereignty for the purpose of exploring the seabed and exploiting its
natural resources, which, is an inherent right.[1057]
In a way, with the creation of the exclusive economic zone as a regime,
261

where article 56 of the 1982 Convention on the Law of the Sea permits the
exercise of sovereignty over the natural resources of its exclusive economic
zone inclusive of seabed resources, there has been a considerable amount
confusion in relation to the concept of the continental shelves. The concepts
have been considered as being linked together, as was laid down in the
Libya/Malta Continental Shelf case.[1058] The only difference lies in the
fact that claims relating to the economic zone have to be specifically made,
as opposed to instances pertaining to the continental shelf.
The 1958 Convention on the Continental Shelf, under Article 1 defined the
continental shelf with due consideration of its exploitability, instead of
considering the geographical definition. The expression is defined under the
convention as meaning the seabed and subsoil of the submarine areas
adjacent to the coast but outside the area of the territorial sea, to a depth of
200 meters or, beyond that limit, to where the depth of the superjacent
waters admits of the exploitation of the natural resources of the said areas,
and to the seabed and subsoil of similar submarine areas adjacent to the
coasts of islands. However, with the evolution of technology by leaps and
bounds, there were plenty of loopholes in the general scheme of things,
since resources soon began to be extracted from depths greater than 200
meters, which extended to limits outside of the continental shelf, subject to
the jurisdictional control of the coastal state. There were several
ambiguities that needed addressing. Nevertheless, in the North Sea
Continental Shelf Cases,[1059] the ICJ stated that Article 1 of the 1958
Convention on the Continental Shelf reflected customary international law.
A pertinent fact is that the basis of title of a coastal state to the continental
shelf bears geographical overtones, as opposed to reliance upon the
occupation or effective control test. The submarine areas involved may in
effect, be deemed as being part of the territory over which the coastal state
already has dominion, in the sense that although covered with water, they
are a prolongation or continuation of that territory, by being an extension of
the same under the sea.[1060]
The approach has been changed with the advent of Article 76 of the 1982
Convention on the Law of the Sea. Article 76(1) specifically mentions that
the continental shelf of a coastal state comprises the seabed and subsoil of
the submarine areas that stretch beyond its territorial sea, throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or, to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of
the continental margin does not extend up to that distance. Clause 3 of the
same article explains that the continental margin comprises the submerged
262

prolongation of the land mass of the coastal State, and consists of the seabed
and subsoil of the shelf, the slope and the rise. It does not include the deep
ocean floor with its oceanic ridges or the subsoil thereof. The subsequent
clauses emphasize that where the continental margin stretches beyond 200
miles, certain geographical considerations are to be studied in the process
of establishing the limit, which shall not go beyond 350 miles from the
baselines, or, 100 miles from a 2,500 meter isobath.[1061] In addition, in
the Libya/Malta Continental Shelf case,[1062] it was held that where the
shelf does not stretch as far as 200 miles from the coast, the concept of
natural prolongation is deemed a guiding principle of the distance. In a bid
to pursue means to resolve disputes, the Convention provided for a
Commission on the Limits of the Continental Shelf, comprising 24 experts,
all elected by the states party to the Convention. Annex II to the Convention
stipulates, under Article 4 specifically, that a coastal state that intends to
establish the outer limits to its continental shelf as beyond 200 nautical
miles is under an obligation to submit details and particulars of the limits to
the Commission, along with supporting data of scientific and technical
character, as soon as possible, within ten years of the entry into force of the
Convention, with respect to the state. Article 76(8) explains that the limits
of the shelf as established by the coastal state, based on the
recommendations are final and binding. Article 121(3) speaks of continental
shelves in the context of islands, indicating that islands do indeed generate
continental shelves, unless the island itself comprises of nothing more than
rocks that render it incapable of sustaining human habitation.[1063]
In relation to the continental shelf, the coastal state is entitled to exercise
sovereign rights for exploration and exploitation. This is provided for under
Article 77 of the 1982 Convention. These rights are exclusive without the
express consent of the coastal state no other state can undertake any
activities within the continental shelves. The sovereignty flows naturally,
without a proclamation of any sort. The Truman proclamation relating to
resources originally covered only resources of a mineral nature, but in
principle, it has been extended to include all other forms of resources,
including those belonging to sedentary species.[1064] Disputes arose by the
dozen, considering the extent of vagueness and ambiguity couched in these
provisions. France and Brazil had conflicts in relation to the lobster as a
resource. The United States and Japan had issues over the Alaskan King
Crab.[1065] Considering that the regime is an exclusive for natural
resources, wrecks on the shelf do not come within the ambit of
jurisdictional powers.[1066]
The rights of the coastal states do not hamper the status of the above-lying
263

waters, such as the high seas, and the airspace above the waters, as under
Article 78. Article 79 asserts that subject to the right of the coastal state to
take reasonable measures for the exploration and exploitation of the
continental shelf, the coastal state may not hamper the process of laying and
maintaining cables and pipelines on the continental shelf. There must not be
any unjustifiable interference with navigation, fishing or the conservation of
the living resources of the sea, in the course of exploration and exploitation,
according to both articles. Article 80 of the Convention explains that the
coastal state is permitted to construct and maintain installations and other
devices necessary for the purpose of exploration on the continental shelf,
and, is permitted to establish safety zones around the installations to a
permissible extent of 500 meters. This is to be respected by all other states.
States are also permitted to take up any measures in pursuit of their security
and protection. Despite being under the jurisdictional control of the coastal
state, these regions and installations will not be deemed as islands, which
implies that they do not have a territorial sea to call their own, and owing to
their presence, there is no adverse impact on the determination of the
territorial waters of the coastal state itself. Article 82 covers instances
where the continental shelf extends beyond 200 miles, and states that the
coastal state must make payments, or contributions in kind, for the
exploitation of non-living resources of the continental shelf, beyond the 200
mile limit. Payments should be made on an annual basis after the first five
years of production at the site involved at rates based on a sliding scale up
to the twelfth year of production. After this point, the rate stabilizes itself at
7%. Payments so made shall be directed to the International Seabed
Authority, which in turn, shall distribute the amount amongst the state parties
based on an equitable sharing regime, in keeping with the interests of the
states involved, particularly the developing and least developed states, and
landlocked states. As explained by Article 82(3), a developing state that
functions as a net importer of mineral resources involved is exempted from
making such payments. Article 83 explains the procedure involved in
delimitation of the continental shelf between States with opposite or
adjacent coasts. Clause 1 suggests that the delimitation of the continental
shelf between States with opposite or adjacent coasts shall be effected by
agreement on the basis of international law, as referred to in Article 38 of
the Statute of the International Court of Justice, in order to achieve an
equitable solution. Failing which, States concerned shall resort to the
procedures provided for in Part XV of the UNCLOS. The part of the
Convention dealing with the Continental Shelves does not prejudice the
right of the coastal State to exploit the subsoil by means of tunneling,
264

irrespective of the depth of water above the subsoil, as put forth by Article
85.
Maritime Delimitation
Delimitation of the continental shelf paved the way for several debates,
which manifested themselves in the form of cases and treaties. Conceptually
speaking, delimitation per se is a tenet of territorial sovereignty where it
involves other states, and requires an agreement. Considering the extent of
ambiguity in the sphere, there has been ample use for agreements in order to
settle difficulties, in keeping with the basics of equity.[1067]
Article 6 of the 1958 Convention on the Continental Shelf stated that in the
absence of an agreement, and unless another boundary line was justified by
special circumstances, the boundary delimiting the continental shelf should
be determined in keeping with the principle of equidistance from the nearest
points of the baselines from which the breadth of the territorial sea of each
state is measured. The equidistant line, or the median line, would operate in
such cases in the context of the bends and meanders on the seas. In the
North Sea Continental Shelf Cases,[1068] the issue related to the
application of the equidistance principle as under Article 6. The application
therein, would have entitled Germany to access only a small share of the
North Sea Continental Shelf, in its concave northern shoreline as it existed
between Holland and Denmark. The issue before the court was in relation to
whether the article was binding upon the Federal Republic of Germany,
since it had not ratified the 1958 Convention on the Continental Shelf. In its
decision, the Court held that the principles mentioned under Article 6 did
not constitute customary international law, and therefore, did not bind the
Federal Republic of Germany. The Court asserted that delimitation should
be put in place by an agreement in keeping with equitable principles,
considering all relevant circumstances, such that as much as possible is left
to the states involved, all the parts of the continental shelf constituting a
natural prolongation of its land into and under the seas, without eating into
the natural prolongation of the land of other states into the sea. While
mentioning a couple of factors to be considered, the court asserted that a
reasonable degree of proportionality as between the expanse of the
coastline, and the expanse of the continental shelf itself.[1069] Article 6
however found its applicability in the Anglo-French Continental Shelf
Case,[1070] since states privy to the dispute were both parties to the 1958
Convention on the Continental Shelf. The ICJ noted that article contained an
overall rule that combined the equidistance and special circumstances rule,
in effect giving particular expression to a general norm that, failing
265

agreement, the boundary between states abutting on the same continental

shelf was to be determined on the principles of equity. When it comes to the
method of delimitation, the choice depends on the circumstances of the case.
Though both customary international law and the 1958 Convention on the
Continental Shelf encouraged the basis to be maintained as equitable
principles, it really ultimately boils down to the factual matrix of the case.
In the case, the court relied on the special circumstances involved,
concerning the Channel Islands, which justified a delimitation aside of the
median line as was proposed by the United Kingdom. The Court also
accorded the Scilly Isles only the half-effect in the course of delimitation
in the Atlantic zone, because what equity called for was an appropriate
abatement of disproportionate effects of a considerable projection on the
Atlantic continental shelf, of a somewhat attenuated projection of the
UKs coast.
When neither state was party to the erstwhile 1958 Convention on the
Continental Shelf, the issue had to be dealt with by custom, as was seen in
the case of Tunisia/Libya Continental Shelf Case,[1071] where the ICJ
held that the satisfaction of equitable principles is of cardinal importance in
the process of delimitation. Natural prolongation also bears considerable
importance, but that hinges heavily on the circumstances involved.
Nevertheless, it is not given the same status as the equitable principles
themselves are.[1072] The half-effect principle was put to use in the context
of the Kerkennah Islands,[1073] while asserting that each continental shelf
dispute had to be given due consideration with importance attached to the
merits of its circumstances. There should, however, be all cautions taken in
preventing an over-conceptualization of the application of the principles and
rules pertaining to the continental shelf.[1074] The Court perceived that
principles were subordinate to the goal, and the principles to be indicated in
the process have to be chosen in the light of their appropriateness for the
sake of arriving at an equitable result.[1075] With this line of thinking, the
earlier decision in the North Sea Continental Shelf Cases,[1076] was
overturned with complete diminution of the importance of the element of
predictability. Judge Gros professed a dissenting opinion, highlighting his
concerns in relation to the dangers of an equitable solution arising out of
subjective considerations and assessments of all the relevant material.
[1077]
The Gulf of Maine Case,[1078] elaborated upon the delimitation of the
continental shelf and the fisheries of Canada and the United States, where
both states sought a single maritime boundary. The ICJ formulated two
principles, in congruence with international law, which deal with
266

delimitation of the continental shelf. Primarily, the court stated, there could
not be any unilateral delimitations. If any, delimitations can be made only in
pursuance of an agreement effected by the parties, or, in collaboration with
third parties. The second principle that was highlighted by the court was that
delimitation is to be effected only by applying equitable criteria, and by
deploying practical methods, capable of ensuring an equitable result while
remaining within the ambit of geographical configurations and relevant
circumstances.[1079] Keeping the core notion of considering equal division
of the overlapping and convergent areas as important, the court emphasized
on the intrinsic value in terms of equity, as borne by the principle. Other
ancillary conditions would also go into the process, based on what the
factual circumstances were like. In addition, the court asserted that a couple
of practical methods necessary to give effect to the extant criteria would
have to be taken into consideration too. In delimitation, the method is the
same for exclusive economic zones and for the continental shelves, but the
ensuing results may not necessarily be the same. The Court made it clear
that the criteria deemed equitable in relation to continental shelf
delimitation neednt compulsorily have the same properties in relation to
dual delimitations.[1080]
The principles laid down by the ICJ were also applied in the
Guinea/Guinea-Bissau Maritime Delimitation case,[1081] where the
arbitral award echoed the ICJ in declaring that the underlying aim of any
delimitation process is to arrive at an equitable solution in keeping with the
factual matrix of the case at hand.[1082]
Distance as a criterion saw deployment in the Libya/Malta Continental
Shelf Case,[1083] where the ICJ applied customary international law since
Libya was not party to the 1958 Convention on the Continental Shelf. Since,
at the relevant time, the exclusive economic zone gained position under the
ambit of customary international law, and that such economic zone could not
exist devoid of rights over the seabed and subsoil, to be exercised in a
manner similar to those that could be enjoyed over the continental shelf. As
a consequence, thus, it was necessary to take into consideration the 200 mile
limit of the zone, in keeping with the delimitation of the continental shelf.
Nevertheless, the court explained that this did not immediately imply that the
concept of the continental shelf merged with the principles of the exclusive
economic zone. Instead, greater importance had to be accorded to elements
that are more or less common to both. Since the law allowed claims to be
laid in respect of a continental shelf extending up to 200 nautical miles from
the coast, irrespective of whatever the form of geographical characteristics
were found to exist, it was clear that there wasnt much rhyme or reason to
267

accord any role to the geological or geographical factors within the distance
specified.[1084] Therefore, with the 200 mile limit being the recognized
distance criterion for the basis of the title, it became clear that the most
expedient course of action would be the drawing of the median line between
the opposite states. The principle would have to be tested in keeping with
relevant circumstances and equitable principles whenever it would be put
into action.[1085] In arriving at its decision, ample importance was also
attached to the decision in Tunisia/Libya,[1086] where the concept of
proportionality and its utilization as a test of equitableness was explained.
The comparability of the expanse of the coasts was also taken into account
in arriving at an equitable median. The different coastal lengths were
deployed as the reason for adjusting the median line in a bid to afford a
larger shelf area for Libya. In addition, the geographical structure of Malta
was also looked at, considering how it was a small feature in a semi
enclosed area.[1087] While taking into consideration several principles of
equity, the Libyan argument that a state with a larger landmass would have a
greater claim to the shelf was rejected, and the Maltese argument that the
relative economic position of the states involved was a relevant factor.
[1088]
In sum, the general geographical arrangement of the coasts of the states
involved, their relation with each other and oppositeness, the difference in
lengths of the relevant coasts of the parties and the distance between them
and the need to avert excess disproportion between the extent of the
continental shelf and the length of the relevant portion of the coast in the
process of delimitation, are the core factors to be considered.
Subsequent to this, the St. Pierre and Miquelon case,[1089] served as the
next hallmark in the jurisprudence relating to the delimitation of continental
shelves. The Court of Arbitration was emphatic in its conclusion, holding
that the process of delimitation began with the determination of the
geographical connotation of the dispute involved, and also indicated that
geographical configurations were fundamental to the process of
delimitation. The Court segregated the entire area into two parts, the
southern and the western zones. In the western zone, it was found that any
form of extension of the islands beyond the territorial sea, in the seaward
direction, would result in a considerable extent of encroachment to the
projections in the seaward direction, towards the south from the southern
shore of Newfoundland. In the light of this, it was found that an attempt to
enclave the islands within the territorial sea would result in considerable
inequity, and hence suggested a solution indicating the grant of an additional
12 miles from the limits of the territorial sea as an exclusive economic zone,
268

to the island.[1090] Coming to the southern zone, it was found that where
the islands had a coastal opening in the seaward direction unobstructed by
any opposite Canadian coast. The Court held that France was permitted an
outer limit extending up to 200 nautical miles, with the qualification that the
projection was not to encroach upon, nor cut off a parallel frontal projection
of the southern coast of Newfoundland, which were adjacent segments. To
give this effect, the Court stressed on the importance of the breadth of the
coastal opening of the islands towards the southern side, resulting in a 200mile expanse worth of a corridor southwards from the islands themselves,
as the economic zone.[1091] Based on the facts of the case, the court was
able to arrive at a satisfactory conclusion indicating that the delimitation
was not radically inequitable,[1092] having borrowed the phrase from the
Gulf of Maine case.[1093]
In 1993, the Jan Mayen case[1094] was decided, where the question of
delimitation of the continental shelf became a bone of contention between
Denmark and Norway. The issue was dealt with in keeping with Article 6 of
the 1958 Convention on the Continental Shelf. The ICJ asserted that since
the question was one relating to the delimitation between two opposite
coasts, it was necessary to begin by taking into consideration, provisionally,
the median line, and then investigating the existence of special
circumstances as belonging to the same category of relevant circumstances,
which would necessitate another boundary line.[1095] This led to looking at
the disparity in coastal lengths, which revealed that Greenland had a coastal
length equal to more than nine times the length of Jan Mayen. Unqualified
use of the equidistance rule, thus, in the light of these issues, would result in
a disproportionate consequence.[1096] The Court took note of the access to
fish stocks by vulnerable fishing communities. It was a given that the
principle resources available in the area were the capelin species,
specifically found in abundance in the southern portion of the overlapping
claims. If a median line was adopted, it could impinge on Denmarks right
to access the capelin. Ultimately, the median line was adjusted towards the
Norwegian island of Jan Mayen.[1097]
In cases relating to opposite states, there is less difficulty in putting to use
the equidistance method since there would be a clear demarcation. In cases
where the states are adjacent, there is more difficulty in deploying the
equidistance method, especially since there would be a distortion
considering the individual geographical features of the states involved.
Nevertheless, article 83 of the 1982 Convention on the Law of the Sea
merely enunciates the need to arrive at an equitable solution based on
international law, and does not for any purpose, define the distinction
269

between opposite and adjacent states. This has led to a presumption in

favour of applying the equidistance rule in scenarios involving opposite
states and adjacent states. Of course, proportionality also has a
considerable bearing in determining the delimitation. Article 74 of the 1982
Convention on the Law of the Sea explains that delimitation of the exclusive
economic zone as between the states with opposite, or adjacent coasts needs
to be arrived at by way of an agreement, in keeping with international law,
so as to settle at an equitable solution. The provision employs the statement
in order to achieve an equitable solution, which is also similar to the rule
governing the delimitation of continental shelves as under Article 83. The
similarity has often times led to states demanding one boundary for both, the
exclusive economic zone and the continental shelf. As a consequence, thus,
there needs to be an assessment of criteria applicable to both, and not just
either.[1098]
The more recent stream of cases in the jurisprudence relating to maritime
delimitation indicate a simplification and clarification of the otherwise
complex set of rules. In Eritrea/Yemen (Phase Two: Maritime
Delimitation),[1099] it was held that the general perception is that between
opposite coasts, the median line is essentially an equitable boundary in
keeping with the rules of the 1982 Convention on the Law of the Sea. While
mentioning that proportionality is not the only mode, the test of
equitableness of delimitation was also considered important in evaluating
delimitations arrived at by other means. Subsequently, in Qatar v. Bahrain,
[1100] the emphasis was largely upon the relation between the continental
shelf and economic zone delimitations. The court pointed out that the
appropriate means to proceed was to first, provisionally draw an
equidistance line and then to consider the existence of circumstances
leading to the adjustment or modification of the line itself. The equidistance
rule as applicable to the territorial sea delimitation, and considering that the
rule developed since 1958 through jurisprudence and state practice in
relation to the exclusive economic zone and the continental shelf, both were
deemed to have shared a close relationship of sorts. The same was
reaffirmed in Cameroon v. Nigeria,[1101] where the court mentioned that
the applicable criteria, principles and rules of delimitation concerning a
line covering several zones of coincident jurisdiction could all be
expressed in the equitable principles method, or the relevant circumstances
method, where the line would be drawn, following which there would be a
stock-taking of the existence of any situation that could possibly lead to the
adjustment of the line so drawn.

270

With ample instances indicating a considerably accepted trajectory, one can

clearly infer the existence of a satisfactory realm of law on the subject,
comprising a confluence of customary law and treaty law. The delimitation,
whatever it may be for, is essentially to be undertaken only after determining
the appropriate method for it, and by deploying the same.
The High Seas
The term high seas refers to all those parts of the seas that are not
included within the ambit of the territorial sea, or in the internal waters of a
state.[1102] The Latin term, mare librum, is an oft used term to denote the
high seas, which translates into meaning free seas. Originally, the seas were
deemed closed, especially by Spain and Portugal in the fifteenth century,
and for a considerable part of the sixteenth century. The claims were
buttressed by the Papal Bulls of 1493 and 1506, which divided the seas of
the world between Spain and Portugal. However, the notion was soon
displaced, with the rule of open seas and the associated cache of freedoms
of the high seas, in the eighteenth century. The quintessence of the freedom
of the high seas lies in the fact that it is free from sovereign appropriation,
which implies that no state shall have or exercise sovereign rights over the
high seas in entirety, and over parts of the high seas.[1103] While this is the
generally accepted rule, a considerable number of doctrines operate to
which the rule is subject. Some of these are the rules of recognition of the
rights of other states in respect of certain zones on the high seas, which is an
explicit acceptance and, the process of acquiescence and prescription which
allows the appropriation of certain parts of the high seas in keeping with the
long usage by certain states, which is implicit and inferred from conduct, as
was explained in the Anglo-Norwegian Fisheries Case.[1104]
The High Seas were open to all to use, and this rule found enunciation as
early as during the First World War, by US President Woodrow Wilsons
fourteen points. The document emphasized the right to navigate the oceans,
and also disapproved of war fought on the waters. If for anything at all, the
freedom was to be breached only in pursuance of a necessary international
agreement. These very freedoms have been found couched in Article 87(1)
of the UN Convention on the Law of the Sea, where the high seas are open
to all states, whether coastal or landlocked, exercised in the form of the
non-exhaustive list of freedoms under clauses (a) to (f) therein.
The 1958 Convention on the High Seas dealt with the definition of the High
Seas, as being all parts of the sea that were not included in the territorial
sea, or the internal waters of the state. As a reflection of customary
271

international law, the principle has, for the most part remained to a certain
extent, with a couple of modifications and today remains as enunciated
under Article 86 of the 1982 Convention., whereby the high seas are defined
as being all the parts of the sea that are not included in the exclusive
economic zone, in the territorial sea, or, in the internal waters of a state, or
in the archipelagic waters of an archipelagic state. Article 2 of the erstwhile
1958 Convention on the High Seas mentioned the principle of freedom of
the high seas, which, in an augmented form, is found in article 87 of the
1982 Convention on the Law of the Sea, as enunciating that the high seas are
open to all states and that the freedom of the high seas is exercised under the
conditions stipulated in the Convention, in keeping with other rules of
international law. On a general note, the freedoms include, inter alia, the
freedom of navigation, over-flight, the laying of submarine cables and
pipelines, the construction of artificial islands and other installations
permitted under the ambit of international law, fishing and conducting
scientific research, all of which are subject art VI of the Convention which
provides for rules relating to the continental shelves. Of course, the
freedoms are not absolute, but rather, watered down by the obligation to
respect the interests of other states in relation to their rights over the high
seas, and by the obligation to respect the rights under the Convention, in
relation to the International Seabed Area. The freedoms are not restricted to
coastal states, but can also be enjoyed by landlocked states, all of whom
also enjoy the right to sail ships on the high seas, bearing their insignia and
flags, as was explained under Article 4, of the 1958 Convention on the High
Seas, carried forward under Article 90 of the 1982 Convention on the Law
of the Sea. In pursuit therefore, the states lying between landlocked states
and the sea, should ideally negotiate agreements to enable the landlocked
states to access and use their ports and allow transit rights through their
territorial expanse, as was enunciated by article 3 of the 1958 Convention
on the High Seas. The UN General Assembly passed a resolution in 1991,
[1105] reaffirming the right to access landlocked states to, and from the sea,
and explained the existence of the freedom of transit through the territory of
transit states by all modalities of transport. Other freedoms include the
freedom to conduct naval exercises and research studies in the High Seas.
Where fishing rights are concerned in relation to the High Seas, there is no
absolute enjoyment permitted. The 1993 FAO Agreement to Promote
Compliance with International Conservation and Management Measures by
Fishing Vessels on the High Seas,[1106] followed by the 1995 UN
Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Seas of 1982 Relating to the Conservation and
272

Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,

[1107] are principles that raise concerns in relation to conservation of the
fishing resources, to avoid a destruction of marine biodiversity.
In the Nuclear Tests case,[1108] the ICJ had to deal with the question of
nuclear testing in the Pacific Ocean by France, an issue which was raised by
Australia and New Zealand. The core contention of Australia and New
Zealand was that Frances activity infringed upon the freedom of the high
seas, but the ICJ did not touch the issue. The 1963 Nuclear Test Ban Treaty
by itself prohibited the testing nuclear weapons in the high seas and on land.
But, since France was not privy to the Treaty, and the rule did not amount to
a manifestation of customary international law, it was not binding on France
to follow. Article 88 of the 1982 Convention on the Law of the Sea,
however, is better equipped to deal with such issues considering that it
emphasizes upon peaceful use of the high seas.
Another prominent freedom is that of navigation, which has been oft quoted
and well-recognized as bearing a considerable traditional value.[1109] The
principle found reinforcement in the Fisheries Jurisdiction case,[1110]
where it was held that Icelands extension of its fishing zones from 12
nautical miles to 50 nautical miles was a violation of Article 2 of the 1958
Convention on the High seas, considering that the said article was a
reflection of the established principles of international law. Freedom of
navigation during times of war and armed conflict came up during the IranIraq war, where, in the latter part, there were attacks on civilian shipping by
belligerents. In keeping with the UN Charter, the incident was denounced by
the United Kingdom, which asserted that the freedom of navigation on the
high seas is by all means an existent principle, and all violations of the law
of armed conflicts, inclusive of wanton attacks on merchant shipping.
Keeping with Article 51 of the UN Charter, it was mentioned that a state
involved in an armed conflict is permitted a right to self defense, to stop and
search a foreign merchant vessel in the event of reasonable suspicions of the
likelihood of arms being ferried across the waters.[1111]
Jurisdictional Rights and the High
Seas
Maintaining peace, security and order on the high seas largely hinges upon
determining the nationality of the ship, as a consequence of which the
subsequent question on jurisdictional control is answered. When each ship
sails out to sea, the nationality of the ship is determined by the flag and
insignia it bears. Therefore, each such flag state, shall be the one to enforce
the necessary laws of municipal law and international law, in relation to the
273

ship. Hence, a ship without a flag would be deprived of the rights available
under international law.
States are under an obligation under international law, to stipulate requisite
conditions to be followed in order to grant nationality to its ships, and in
order to register ships in its territory so as to enable them to fly the flag of
such state.[1112] Although the nationality of the ship essentially depends on
the flag as borne by the ship, by and large, it is necessary as under Article
91 of the 1982 Convention on the Law of the Sea, that there is a genuine link
between the state, and the ship itself. This provision is a reflection of
customary international law, and is a reiteration of the erstwhile Article 5 of
the 1958 Convention on the High Seas. The principle was deployed in M/V
Saiga (No.2), [1113] in order to check the use of flags of convenience, as
operated by Liberia and Panama which would grant their nationality to ships
requesting the same, due to low taxation and other economic considerations
such as the lack of application of wage and social security agreements. As a
consequence, ships were operating cheaper. In the case, the ITLOS
explained that the determination of the criteria and establishment of
procedures for granting and withdrawing nationality to ships lie within the
ambit of the exclusive jurisdictional powers of the flag state. Nevertheless,
disputes concerning the same could be settled in keeping with the 1982
Convention on the Law of the Sea. Nationality as a factor, the ITLOS
explained, would be determined in keeping with the evidence tendered.
[1114] It was ruled that the conduct of the flag state at all times material to
the dispute was an important consideration in determining the nationality or
registration of a ship.[1115]
Understanding the term genuine link involves a considerable amount of
doubt, as does the issue as to how states may keep in check, any form of
misuse of article 5. In general, the idea of what the genuine link is has often
been subject to different views. While the United States perceives it to be a
duty to exercise jurisdiction over the ship in an efficient manner and not a
prerequisite for the grant or acceptance of such grant of nationality by other
states, most other states do not concur.[1116] Many a time, though, the issue
has been subject to plenty of judicial analysis. Starting from the IMCO
case,[1117] where the ICJ had to deal with the definition of the largest shipowning nations, in order to constitute a committee of the Intergovernmental
Maritime Consultative Organization. In pursuance of its duty, the court
asserted that the term implied registered tonnage, which in turn permitted
Liberia and Panama to be elected to the committee. Despite the issue having
been brought up, nothing was done to address the question of genuine link,
274

which led to ample doubt.

Subsequently, in 1984, the UN Conference on Conditions of Registration of
Ships was held under the UNCTAD. The conference culminated in an
agreement that was signed in 1986. The agreement addresses specific
questions, such as the flags of convenience, while keeping in mind the fact
that most states merchant fleets flew flags of convenience in 1985. Flag
states, as per the agreement, are to provide in their laws and regulations,
provisions for the ownership of all the vessels flying their flags, and,
facilitate participation by nationals and ship owners, allowing the state to
exercise jurisdiction and control over the ship itself.[1118] Further, during
the Iran-Iraq war, the same question came to fore, in dealing with Irans
attacks on Kuwaits ships. The United States and the United Kingdom
embarked upon a reflagging process in relation to some of the ships in the
Gulf in a bid to protect them. Both states contended that the genuine link
requirement was satisfied, since the satisfaction of the Department of Trade
and Industry requirements sufficed.[1119] There wasnt much available to
assert that the conduct of the UK and the US was in violation of international
law.
In M/V Saiga (No.2), the ITLOS explained that the requirement of a genuine
link is essentially to secure efficient discharge of the flag states duties. It is
not undertaken with a view to establish criteria by reference to which the
validity of the registration of ships in a flag state may be challenged by other
states.[1120]
The sum and substance of the rules involved boil down to the fact that ships
are under an obligation to sail under the flag of only one state, and
consequently are subject to its exclusive jurisdiction of that state alone.
However, where a ship sails under the flags of different states, in keeping
with convenience, the ship may be deemed as one without nationality, and
will not be permitted to claim the nationality of any of the states whose flags
it holds.[1121] A stateless ship, i.e., a ship flying no flag, is essentially free
to be boarded and seized on the high seas, as was explained in Naim
Molvan v. Attorney General for Palestine,[1122] where the British navy
seized a stateless ship in a bid to convey immigrants into Palestine. Thus, it
stands clear that it is only the flag state alone that can exercise rights over a
ship. The Lotus case,[1123] witnessed the enunciation of the rule that all
vessels on the high seas are subject to no authority, except that of the state
whose flags they fly. The rule applies irrespective of the nature of the
vessels, whether warships or ships owned or operated by a state, or where
the ships are used for non-commercial, governmental services. These ships,
275

as a natural corollary, have complete immunity from the jurisdiction of any

other state aside of the flag state.[1124]
While the rule applies such, there are exceptions aplenty to the exclusive
exercise of jurisdiction. The exceptions are herein explained.

Exception 1: Fish Stocks

The high seas permit the enjoyment of the fundamental freedom to fish.
However, this is neither absolute, nor completely restricted, as was
explained by article 2 of the 1958 Convention on the High Seas. Exclusive
economic zones have evolved as part of the territorial rights of sovereign
control. With this having taken place, a fairly large amount of these fish
stocks came under the wing of coastal sovereign rights, which in turn
encouraged the expansion of the rights of coastal states into the high seas.
However, in keeping with the increments in leaps and bounds, caution came
to be in the form of law.
Article 56(1) of the 1982 Convention on the Law of the Sea explains that
coastal states have sovereignty over their economic zones, in relation to
exploiting, exploring, conserving and managing their fish stocks in those
zones. In addition to these rights, are a couple of appended duties which
require the states to see to it that these resources remain conserved and
managed in such a way that the fish stocks are not endangered, and do not
bear the brunt of over-harvesting and over exploitation. The stocks need to
be sustained at those levels that allow them to produce the maximum
sustainable yield, as under article 62 and 62 of the 1982 Convention on the
Law of the Sea. Article 63(1) works on an equitable level, to avoid any
form of prejudice, by stating that where the same stock or stocks of species
that are associated are found to occur within the exclusive economic zones
of two or more coastal states, these states shall seek directly or through
regional organizations, to agree upon necessary measures to be taken to
coordinate and ensure conservation and development of the stocks.
The freedom to fish in the high seas is no doubt subject to the rights and
duties and interests of other coastal states as explained herein, as under
article 116(b) of the 1982 Convention on the Law of the Sea. The
convention also, between articles 117 and 120, requires that states
cooperate with one another in undertaking such measures as necessary for
their respective nationals, in a bid to conserve living resources on the high
seas. The convention stipulates a large number of criteria to be followed in
determining the permissible catch, and in establishing conservation
276

measures.
Amongst the myriads of species of fish stocks, the biggest question is often
times posed by straddling stocks. Straddling stocks essentially refer to those
species of fish that traverse distances of both, the exclusive economic zone
and the high seas, straddling between the two. If the high seas remain
unregulated, it is likely that the stocks of these species of fish may suffer
depletion on account of unrestricted fishing of those stocks in the high seas.
Where the same stock or stock of associated species are found occurring
within the exclusive economic zone and in the area beyond and adjacent to
the zone, the coastal state and the states that fish for such stocks in the
adjacent area shall cooperate through agreements or through any regional
arrangements, to agree upon measures necessary to conserve these
resources, as was enunciated under article 63(2).
While the 1982 Convention did provide for the issue, the law was deemed
insufficient considering how there were pressing concerns with the rising
problems posed by straddling stocks, which in turn demanded a more
comprehensive regime.[1125] In keeping with these concerns, in 1993, a
Straddling Stocks Conference was set up with a view to come out with a
solution related to the issue. Subsequently, in 1995, the Straddling Stocks
Agreement emerged, with strong emphasis upon the need to conserve and
manage straddling fish stocks and species of a highly migratory disposition,
and encouraged states dabbling with the fishing of such stocks to exercise
the precautionary approach under Articles 5 and 6. Article 8 emphasizes
that coastal states and states that fish in the high seas, shall cooperate with
one another in relation to straddling and highly migratory stocks of fish,
either directly, or, in pursuance of any regional or sub-regional
arrangements or organizations, in pursuance of which they shall enter into
consultations in good faith without any delay, at the behest of any interested
states in relation to establishing arrangements to safeguard conservation and
management of the stocks. The Agreement accords a lot of importance to
regional and sub-regional cooperation, especially under Article 10 which
indicates that states in fulfilling their obligations, ought to cooperate through
such organizations and arrangements, and, such states shall, inter alia, agree
to upon measures that shall ensure long-term stability and sustainability of
straddling stocks and highly migratory fish-stocks, and agree as is
appropriate upon the rights of participation by allocating allowable catch
levels. Cooperation is encouraged at all levels, in relation to monitoring,
controlling, surveillance and enforcement processes, dispute redressing,
decision making in relation to the adoption of conservation and management
measures as are necessary. Policy making, thus, has clearly remained within
277

the domain of international law, while implementation rests on the shoulders

of the states individually. Flag states are to take such measures as are
necessary to ensure that their vessels comply with requisite sub-regional
and regional conservation and management measures as under article 18.
Article 19 mandates that flag states are under an obligation to enforce such
measures, irrespective of where the violation occurs, and to investigate such
violations. Further, article 21 encourages regional and sub-regional
cooperation in the process of enforcement of the law, and stipulates that in
any area of the high seas as is covered by such arrangements or
organizations, a state party to the agreement which is also a member of such
organization or arrangement, may board and inspect fishing vessels that fly
the flag of any other state that is also party to the agreement, irrespective of
whether the state is part of the organization or the arrangement, for the sake
of enforcing compliance with the conservation and management measures as
established by the organization.
After boarding and inspecting, if it is clear that there are grounds to believe
that a vessel is involved in activities that are contrary to the relevant
conservation and management measures, the state inspecting such vessel
should obtain evidence and notify the flag state of the same. Within three
working days, the flag state is under an obligation to either fulfill its
investigation and allied enforcement as under article 19, or, as an
alternative, must authorize the inspecting state to investigate. When the flag
state authorizes the inspecting state, then, the flag state is under an obligation
to either to embark upon enforcement action, or, must allow the investigating
state to take enforcement action. Where there is sufficient reason to believe
that the vessel has committed a serious violation, and, the flag state has
either failed to take action or has failed to respond as necessary, the
investigating inspectors are permitted to stay on board and secure evidence
and may also require the master to take the vessel to the nearest port as
appropriate, as per article 22. According to article 23, a port state is given
the right and duty to take necessary measures in keeping with international
law, in a bid to promote the effectiveness of sub-regional, regional and
global conservation and management measures.
Plenty of regional and sub-regional conservation and management
arrangements and organizations have burgeoned over the years. The North
Atlantic Fisheries Organization, the Asia Pacific Fishery Commission, the
Australian Fisheries Management Authority, the International Council for the
Exploration of the Sea, the Pacific Whiting Conservation Cooperative, the
South East Atlantic Fisheries Organization are some of the Regional
Fisheries Management Organizations. Functionally, they are essentially
278

responsible for managing fish stocks on the high seas and fish stocks which
migrate through the waters of more than just a single State. Per se, they have
a duty to conserve all species associated or affected by their fisheries.
Exception 2: Right of Visit
The law of sea hinges upon the nationality of ships. Customary international
law accords warships a right to approach ships on the high seas, in a bid to
determine their nationality. But, the right does not accord the authority to
board these ships, or to visit these ships. When there are no hostilities
between the flag states of the warship and the vessel on the high seas, and
when there are no treaty provisions dictating the opposite, or where the
vessel dabbles in piracy or slave trade, or, is of the same nationality of the
warship or bears no nationality though it flies a certain flag, the aforesaid
right may be exercised.
Needless to say, while embarking upon such activity, it is of ample necessity
that such warships remain cautious to say the very least, considering that any
damage or loss emanating from its conduct could lead to pinning of liability
and eliciting damages or compensation therein. International law has made
the practical applicability of these rules rather parochial, despite state
tendencies to expand them, by bringing them under Article 22 of the 1958
Convention on the High Seas. Subsequently, in the 1982 Convention on the
Law of the Sea, under Article 110, it was expanded a little, by allowing a
right of visit in the event that the ship deals with any unauthorized
broadcasts, and, the flag state of the warship has the jurisdictional prowess
to prosecute the perpetrator under article 109 of the 1982 Convention on the
Law of the Sea.
Considering that the high seas are open to the vessels of all states, it is
lawful for a ship to seize another, on the high seas, when the latter is
stateless. This was enunciated in the Asya Case.[1126] Nevertheless, the
right is not absolute, because arbitrary confiscations and unreasonable
destructions need to be accounted for under international law.
Exception 3: Piracy
Piracy is defined under article 101 of the 1982 Convention on the Law of
the Sea, as comprising of either any illegal acts of violence, detention or any
act of depredation, committed for private ends by the crew or the
passengers of a private ship or private aircraft and directed on the high
seas, against another ship or aircraft or against persons on board such ship
or aircraft, or against ship or aircraft or persons or property in a place
outside the jurisdiction of any state; or, any act of voluntary participation in
279

the operation of a ship or an aircraft with the knowledge of facts making it a

pirate ship or aircraft; or, any act or inciting or of intentionally facilitating
an act described above. Piracy, in essence, in international law, ought to be
acts committed in pursuance of private ends. This automatically eliminates
political acts, or hijacking and takeovers in pursuit of political agenda, and
any activity performed by the crew on the ship, that are aimed at the ship
itself, or, on property or persons on board such ship.
Given the nature of the offence of piracy, every state is free to seize a pirate
ship or aircraft, irrespective of whether it occurs on the high seas or on
terra nullius waters. Consequently, once seized, such persons on board the
ship may be arrested, and the goods on the ship may be seized. The state that
seizes such ship automatically enables its own courts to exercise
jurisdictional rights in relation to the ship, and therefore, will allow its
courts to impose penalties and decide the course of action to be followed.
This right is entirely subject to the rights of third states that have acted in
good faith.[1127] The jurisdictional right vested in each state in the wake of
its occurrence, to apprehend a pirate ship stems from the principle of
universal jurisdictional, which is an exception to the generic norms of
sovereignty and jurisdiction of each state within its territorial expanse.
Piracy, though to be kept under control by the actions of all states, is to be
penalized in accordance with municipal law, though international law
governs the high seas.
Exception 4: Unauthorized
Broadcasting
Article 109 of the 1982 Convention on the Law of the Sea is a new addition
in the list of exceptions to the freedom of the high seas. All states, as per the
article, are under an obligation to cooperate in the suppression of all forms
of unauthorized broadcasting, from the high seas. By broadcast from the high
seas, the general meaning is implied television, or sound waves being
transmitted from the high seas, either through ships or installations on the
high seas, intended for reception by the public at large, without following
the mandates of international regulations. This prohibition is not applicable
to the broadcast and transmission of distress calls.
Any individual found to be indulging in such activity mentioned as
prohibited as above is liable to be prosecuted by the flag state of the ship
concerned, or, by the state of registry of the installation concerned, or, the
state of which the person himself is a national, or, any state where the
broadcasted material is received, or, any state where the radio
communication suffers interference. All these states have jurisdictional
280

rights, and hence, in pursuance thereof, they may arrest any person or ship
that is engaging in unauthorized broadcasting on the high seas and may also
seize the broadcasting apparatus.[1128]
Exception 5: Collisions
Article 11 of the erstwhile applicable 1958 Convention on the High Seas
explained that where collisions occur on the high seas, penal and
disciplinary proceedings may be embarked upon only against the master or
other people in the service of the ship, by the authorities of the flag state, or
the state of which the particular person is a national. This overruled the
decision in the Lotus Case,[1129] which held that sovereign states are free
to act in any way, as long as there is no contravention of an express
prohibition of such conduct. Further, article 11 also established that neither
arrest nor detention of the ship, even if they be in pursuit of investigative
requirements, can be ordered by anyone other than the flag states
authorities. Article 97 of the 1982 Convention on the Law of the Sea carries
this provision forth to the present legal regime relating to the High Seas.
Exception 6: Slave Trade
As under Article 99 of the 1982 Convention on the Law of the Sea, states
that every state shall take effective steps to prevent and punish the transport
of slaves in ships that are authorized to fly its flag, and, to prevent the
unlawful usage of its flag in pursuance of a purpose to dabble in slave trade.
Article 13 of the 1958 Convention on the High Seas indicated that any slave
seeking refuge on board any ship, irrespective of its flag, shall be free ipso
facto. Article 110 of the 1982 Convention on the Law of the Sea, which
brought forth Article 22 of the 1958 Convention on the High Seas, dictates
that warships may board foreign merchant ships where there exists a
reasonable suspicion of engaging in slave trade, and, the offenders ought to
be handed over to the flag state for trial.
Exception 7: Hot Pursuit
Hot pursuit refers to a right given to the ship of a coastal state, to pursue a
foreign ship that has infringed the laws of the coastal state, in a bid to
prevent it from escaping punishment by escaping into the high seas. By this
right, a state has the authority to extend its jurisdiction onto the high seas,
with a view to pursue and seize a ship that is infringing its laws, in certain
circumstances. Originally, the right existed in a rudimentary form in the
early 19 century, and has now burgeoned into a comprehensive regime, as
explained under article 111 of the 1982 Convention on the Law of the Sea,
which augments the right as it existed under article 23 of the 1958
Convention on the High Seas.
th

281

The right of hot pursuit is said to commence when the coastal states
authorities have reasonable grounds to believe that the foreign ship has
infringed its laws. The pursuit, in effect, begins when the ship or any of its
smaller boats, are within the internal waters or the territorial sea or the
contiguous zone of the coastal state. Subsequently, it may continue outside, if
such pursuit remains uninterrupted. If the pursuit begins while the ships are
in the contiguous zone, it is necessary that such pursuit be undertaken only if
there has been a violation of the rights of the coastal state in respect of the
contiguous zone itself. The right also exists for an archipelagic state in
respect of its archipelagic waters, and applies to all violations that occur in
the exclusive economic zone and the continental shelf, of course, with the
necessary alterations in the legal provisions. There can be hot pursuit only
when the ship conducting the pursuit, is satisfied reasonably that the ship
being pursued is within the territorial sea, or the contiguous zone or
exclusive economic zone, or, even the continental shelf. Before embarking
upon the chase, it is mandatory that there should be a visual or auditory
signal, demanding that the infringement be ceased. Pursuit can be deployed
as a tactic only by warships, military aircrafts and vehicles that have
special authorization from the government. Hot pursuit ceases the moment
the pursued ship enters its own territorial waters, or those of another state.
All conditions as under Article 111 are cumulative, as explained in M/V
Saiga (No.2). [1130] At all points of time, a state is required to obey
international law, and avoid the use, or threat of use of force, except of
course, where it is unavoidable and simply has to be deployed as a means
of action.[1131]
Exception 8: Treaty Rights and Obligations
Although the right over the high seas is indeed absolute, certain states may
allow other states warships to carry out certain acts, or to exercise certain
powers in relation to searching vessels flying the flags of the signatories to
the treaty. This has been oftentimes seen in the cases where in a bid to
suppress slave trade or piracy, warships of states that entered into
agreements began to permit the right to search and detain vessels involved
in such kind of activities. A case in point is the UK-US agreement on
Vessels Trafficking in Drugs, 1981, where the issue of arms trade and
narcotics smuggling permitted the right to wield certain powers relating to
searching certain vessels on sea.[1132]
Exception 9: Protecting the Marine
Environment
282

Environmental concerns are of utmost importance, considering that the high

seas may possibly be open to being polluted under the notion that it belongs
to none, and hence no one owes anyone an obligation. In keeping with this
concern, the erstwhile 1958 Convention on the High Seas under Article 24,
explained that states had to draw up regulations to prevent the pollution of
the high seas by the discharge of oil or the dumping of radioactive wastes.
In augmentation of the same, the 1958 Convention on the Fishing and
Conservation of the Living Resources of the High Seas, under Article 1,
stated that states were under a duty to adopt and cooperate with other states
in adopting such measures as necessary for the conservation of living
resources in the high seas. Subsequently, in 1969, the Convention on the
Intervention on the High Seas in Cases of Oil Pollution Casualties also
declared that states ought to have taken such measures on the high seas as
necessary to prevent, mitigate or eliminate grave and imminent danger to
their coastlines, or, related interests from pollution or threat of pollution of
the sea by oil, following a maritime casualty or acts pertaining to such
casualties, which may reasonably be expected to ensue in harmful
consequences. The provision was applied in the Torrey Canyon Case,
[1133] where a Liberian Tanker spilled large amounts of oil over large
expanses of the UK and French coastlines. The tanker was bombed and set
ablaze by the United Kingdom in a bid to avert further pollution and
damage.
The present regime includes other conventions as well, such as the 1954
Convention on the Prevention of Pollution of the Seas by Oil, the 1972
Convention for the Prevention of Marine Pollution by Dumping from Ships
and Aircraft, the 1973 Convention for the Prevention of Pollution from
Ships, and the 1974 Convention for the Prevention of Marine Pollution from
Land-based Sources. The 1982 Convention encompasses a comprehensive
regime, including within its fold plenty of articles for the sake of protecting
and preserving the marine environment. Though flag states remain the ones
to legislate pertaining to their ships, the 1982 Convention imposes certain
minimum standards exclusively to be followed by the ships irrespective of
their nationality as explained by Article 211. States are also under an
obligation to fulfill their obligations under international law, in relation to
protecting and preserving the marine environment and the entire cache of
resources related therein. Article 235 dictates that States are obliged to
provide recourse in accordance with their laws, for the grant of
compensation and other relief, for any damage caused by them by polluting
the marine environment, by their vessels, or by people within their
jurisdiction.
283

Underlying all these norms is the fact that states are bound to protect and
preserve the marine environment, as required by article 192.
Landlocked States
It has been a long identified and recognized principle that all states have a
right to enjoy the freedoms of the high seas, and this right extends to all
landlocked states, as well. Article 3 of the 1958 Convention on the High
Seas stated that in order to enjoy freedom of the seas on equal terms with
coastal states, states having no sea-coast should have freedom of access of
the sea. This was also echoed in the subsequently enacted Convention on
Transit Trade of Landlocked States in 1965. The 1982 Convention on the
Law of the Sea, under Article 125 makes it clear that landlocked states shall
have the right of access to and from the sea for the purpose of exercising the
rights as under the convention including the freedoms of the high seas and
the common heritage of mankind. Furthermore, the landlocked states are
afforded a right of transit through the territory of transit states by all means
of transport. The article explains that all arrangements of transit shall be
governed and regulated by agreements entered into by the concerned states.
Further, the transit states are allowed to take all measures necessary to
ensure that the rights and facilities provided for under the article are not
exercised in infringement of their own rights.
There is, thus, no absolute transit right for a landlocked state. The 1982
Convention on the Law of the Sea provides a comprehensive regime on
landlocked states from articles 127 to 130, including details pertaining to
transit arrangements and their operability. Ships bearing the flag of a
landlocked state are allowed equal treatment as that granted to other foreign
ships in maritime ports, as per article 131. Innocent passage as a right is
granted even to the vehicles of the landlocked state, as explained under
Articles 17, 38(1), 52(1), 53(2), 58(1), 87 and 90 of the 1982 Convention
on the Law of the Sea. As a naturally expected corollary, landlocked states
are allowed equal participatory rights in the process of exploiting an
appropriate proportion of living resources in the economic zone of coastal
states in the same region, in keeping with geographical considerations, as
under article 69(1) of the 1982 Convention on the Law of the Sea.
Furthermore, this right is extended to states that are geographically
disadvantaged, in keeping with article 70(1). All such rights are to be
exercised with due importance attached to the agreements entered into by
the states involved, as instructed by articles 69(2) and 70(2). Landlocked
states also enjoy rights in relation to the international seabed in keeping
with article 148 of the 1982 Convention on the Law of the Sea, which says
284

that effective participation of developing states in the international seabed

shall be promoted, with due consideration of their special interests and
needs, and with special importance attached to the needs of geographically
disadvantaged states and landlocked states, in a bid to help them overcome
their obstacles as they emanate from their disadvantaged location or
geographical structures, inclusive of remoteness of their area and the
likelihood of difficulty of access to and from such area.
The International Seabed
There are, without doubt, plenty of resources housed in the seabed, and its
value has considerable importance in the present day. The wealth contained
in the high seas, and the treasure trove of the resources found in the
international seabed, have led to a lot of states interests and attention being
focused on them. Technology and science have advanced enough to enable
the exploration and exploitation of these resources. Concerned with the
likelihood of over-appropriation or the possibility of sovereign claims, the
UN General Assembly passed a resolution in 1969, namely, UNGA Res
2574 (XXIV), wherein a moratorium was sought, on all forms of deep
seabed activities. Following this move, in 1970, a Declaration of Principles
Governing the Seabed and Ocean Floor and Subsoil Thereof came into
place, dictating that the area and its resources formed the Common Heritage
of Mankind and was not to be appropriated, nor was there any room for
rights to be acquired over it without conformity with any international
regime set up to govern the exploration and exploitation of the seabed.
With the onslaught of the 1982 Convention, this regime came into play as
explained under Part XI of the same. Article 1 defines the international
seabed as being the seabed and ocean floor and subsoil thereof, beyond
national jurisdiction. In terms of mathematics and distances, the seabed
would commence at the outermost edge of the continental margin or at least
at a distance of 200 nautical miles starting from the baselines. Since the
zone is completely free of sovereign control, as a rule, all activities ought to
be undertaken solely with the objective of serving the benefit of mankind as
a whole, by or on behalf of the International Seabed Authority as
established under the Convention. However, a perusal of Articles 112, 145
and 256 explains that certain activities, such as the acts of pipeline and
cable laying and scientific research that do not concern seabed resources,
do not require prior permission from the authority. Nevertheless, minerals
that are recovered from the seabed are permissibly alienable, as dictated by
articles 136 and 137. Since the authority looks at the upkeep of benefit of all
285

states and mankind as a whole, all activities carried out by or on behalf of

the authority shall be subject to an equitable sharing regime. When activities
are undertaken, thus, there should be conformity with article 153, where
activities are to be taken up only by the enterprise - the organ as established
by the Authority as its operative wing, or, states themselves or state
enterprises, or, any individual possessive of the nationality of the state
parties or individuals effectively controlled by the state enterprises, in
association with the authority. These qualified applicants, thus, will have to
submit a formal written plan of work to be approved by the Council after a
review is undertaken and completed by the Legal and Technical
Commission, in accordance with articles 3 and 4 of Annex III. After this, the
authority may grant its approval to a plan of work in pertinence to one of
these sites, and, designate the other as a reserved site. By labeling it thus, it
implies that only the Authority may exploit the same, either through the
enterprise or in congruence with the states associated, as per articles 8 and
9.
During the process preceding the passage of the 1982 Convention on the
Law of the Sea, two resolutions were passed. The first essentially
established a Preparatory Commission, in a bid to arrange for a mechanism
to enable the operation of the Authority, and also the International Tribunal
for the Law of the Sea.[1134] The second related to the creation of special
provisions for eight pioneer investors, one each from Belgium, Canada,
France, Federal Republic of Germany, India, Italy, Japan, The Netherlands,
UK, US and USSR. These states were granted the pioneer status, and each
invested an approximate amount of about 30 million dollars in order to
prepare for seabed mining, of which a minimum of 10% was to be invested
in a specific site. In order to depict authenticity, the state had to certify the
occurrence of the same. With this, plenty of regions were marked as specific
sites for the sake of mining activities.
Though there was a clear-cut regime provided for, the United States of
America was exceedingly vociferous in its protest against the same, and
therefore it voted against the adoption of the 1982 Convention. The UK
followed suit in action, and demanded a comprehensive and satisfactory
legal regime for the international seabed. Since there was no assurance
given in pertinence to access of the seabed minerals, and there was a
question arising relating to the lack of free play of market forces, along with
the lack of proportionality in decision making in respect of those countries
that were most affected, the regime was not accepted.[1135] With such
vociferous denunciation, states wanted to pursue alternative courses of
action to assure the creation of a regime for the international seabed. This
286

sparked off the enactment of several pieces of municipal legislation in the

domestic legal realms of varied states.[1136] Subsequently, an agreement
came about in 1982, between France, Federal Republic of Germany, the UK
and the US, called the 1982 Agreement Concerning Interim Arrangements
relating to Poly-metallic Nodules of the Deep Seabed. The agreement
required consultations in the wake of overlapping claims under the ambit of
domestic law, and provides for arbitration as a means to resolve any
dispute. In 1984, another agreement, titled the Provisional Understanding
Regarding Deep Seabed Mining between Belgium, France, Federal
Republic of Germany, Italy, Japan, Netherlands, UK and the US, provided
that no state was permitted to issue an authorization in respect of an
application or seek registration of an area that falls within the ambit of
another properly filed application which is under consideration by another
party, or, within an area that has been claimed in another application filed in
keeping with the national law, and the agreement prior to 3 April 1984, or
prior to the application or request for registration and is still under
consideration of another party, or, within an authorization granted by another
party which is in conformity with the rules under the agreement. No party by
itself, is allowed to engage in deep seabed operations in areas for which it
shall neither issue authorization nor seek registration in keeping with the
agreement.
A declaration was eventually adopted in 1985 by the Preparatory
Commission under the 1982 Convention on the Law of the Sea, which
indicated that any claim, agreement or action relating to an area and its
resources undertaken outside the purview of the Commission, which is
antagonistic to the dictates of the 1982 Convention on the Law of the Sea,
and the related realm of resolutions will not be recognized. Furthermore, in
1987, the Agreement on the Resolution of Practical Problems with respect
to Deep Sea Mining Areas was signed in 1987 between Belgium, Canada,
Italy, the Netherlands and the USSR. Appended therewith, were a series of
Exchanges of Notes inclusive of the Federal Republic of Germany, the UK
and the USA. The agreement attempted to address the question of
overlapping claims relating to states within the 1982 Convention on the Law
of the Sea, and other states, specifically addressing the Clarion-Clipperton
zone in the North-Eastern Equatorial Pacific.
Following this, in 1994, an agreement on the Implementation of the Seabed
Provisions of the Convention on the Law of the Sea came up. Article 1
stipulates that the state parties undertake to implement Part XI of the 1982
Convention in keeping with the Agreement. Article 2 indicates that the
agreement and the 1982 Convention on the Law of the Sea ought to be read
rd

287

together, as a singular document, and in the event of any ambiguity or

inconsistency, the agreement prevails over the convention. The agreement
provided that all entities established under the ambit of the convention and
the agreement itself were to be compulsorily cost effective, in keeping with
an evolutionary approach while considering the functional needs of such
organs or bodies. Section 1 of the Annex enumerates a list of institutional
arrangements in relation to the work of the International Seabed Authority.
Section 2 indicates that the work of the enterprise is to be carried out by the
Secretariat of the Authority initially, and the enterprise shall conduct its
initial deep seabed mining operations through joint ventures that comply
with sound commercial principles Further, section 3 indicates that decision
making in all wings of the authority ought to comply with specific rules, and
section 4 indicates that the Assembly, upon recommendation of the Council,
may conduct a review at any time, of the matters as referred to under Article
155(1) of the 1982 Convention, notwithstanding the provisions of the article
itself, entirely. Transfer of technology to the Enterprise and developing
states needs to be based on fair and reasonable commercial terms on the
open market or through joint-venture arrangements, as under section 5.
The International Seabed Authority itself is an organization established and
organized by states party to the 1982 Convention on the Law of the Sea,
commencing from 1996 when it became fully operational. The principal
organs of the authority include the Assembly, the Council and the
Secretariat. In addition, other subsidiary entities as part of the authority
itself, is the Legal and Technical Commission and the Finance Committee.
The Assembly, as per Article 160, is the supreme organ of the authority, and
elects and appoints the Secretary General and the members of the Governing
Boards of the Enterprise and its Director General. The Council is the
executive wing, and has an Economic Planning Commission and a Legal and
Technical Commission, as explained under articles 162 to 165. As
explained by article 170, the Enterprise carries out the activities in the
International Seabed.
Dispute Resolution
While the 1982 Convention on the Law of the Sea is clear on peaceful
settlement of disputes as the means for dispute resolution,[1137] parties are
free to choose the specific modality to be employed to settle their disputes.
Article 283 simply states that where there is a dispute, parties should
proceed in an expeditious manner to follow an exchange of views relating to
settlement by negotiation or other peaceful means. Article 284 encourages
the deployment of conciliation procedures, which would allow the creation
288

of a conciliation commission and the outcome would be non-binding. If no

settlement is arrived at by agreement between the parties, compulsory
procedures as under part XV of the 1982 Convention on the Law of the Sea
comes into operation, as explained under articles 286 and 287. Available
modalities include the International Tribunal for the Law of the Sea, the
International Court of Justice, arbitral tribunal as established under Annex
VII and special arbitral tribunal as established under Annex VIII for specific
disputes relating to fisheries, preservation and protection of the marine
environment, marine scientific research or navigation, pollution from
vessels and dumping.
Article 297 states that disputes relating to the exercise of sovereign rights
by coastal states in the exclusive economic zone would be subject to the
compulsory settlement process only in specific cases, such as where there
are allegations that the coastal state acted in contravention of the Convention
in relation to the freedoms of navigation, over-flight, laying of cables and
pipelines or any other uses of the sea as under article 58. Clause 2 of the
same article indicates that disputes pertaining to marine scientific research
would be settled in keeping with section 2 of the Convention, but, coastal
states are not obliged to accept the submission to compulsory settlement of
any dispute emanating from the exercise by the coastal state of a right or a
discretion to regulate, authorize and conduct scientific research in its
economic zone or continental shelf, or, a decision to order suspension or
cessation of such research. When such cases arise, the issue is to be taken to
the conciliation commission, but, such commission calls in question the
exercise of discretion on part of the coastal state to designate specific areas
or to withhold consent, all under article 246. Clause 3 provides a similar
set of rules in relation to disputes pertaining to fisheries, which, though
settled according to section 2, do not bind the coastal state if such dispute
relates to its sovereign rights in relation to the living resources in its
exclusive economic zone or relates to the exercise of discretionary powers
for determining the permissible catch or the allocation of surpluses to other
states and the terms and conditions it follows for the conservation and
management of the resources.
Another dispute resolution mechanism was established in the form
of the International tribunal for the Law of the Sea, which is an independent
judicial body established by the Convention to adjudicate disputes arising
out of the interpretation and application of the Convention. The Tribunal
comprises 21 independent members, elected from among persons enjoying
the highest reputation for fairness and integrity and of recognized
competence in the field of the law of the sea. The Tribunal has the Chamber
289

of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber

for Marine Environment Disputes and the Chamber for Maritime
Delimitation Disputes. Any state that is party to a dispute over which the
Seabed Disputes Chamber has jurisdiction may request it to form an ad-hoc
chamber composed of three members. The Tribunal is open to States that are
party to the Convention and, in certain cases, to entities other than states,
such as international organizations and natural or legal persons. The
jurisdictional competence of the Tribunal extends to all disputes submitted
to it in accordance with the Convention. It also extends to all matters
specifically provided for in any other agreement which confers jurisdiction
on the Tribunal. Unless the parties otherwise agree, the jurisdiction of the
Tribunal is mandatory in cases relating to the prompt release of vessels and
crews under article 292 of the Convention and to provisional measures
pending the constitution of an arbitral tribunal under article 290, paragraph
5, of the Convention. The Seabed Disputes Chamber is competent to give
advisory opinions on legal questions arising within the scope of the
activities of the International Seabed Authority. The Tribunal may also give
advisory opinions in certain cases under international agreements related to
the purposes of the Convention. Disputes before the Tribunal are instituted
either by written application or by notification of a special agreement. The
procedure to be followed for the conduct of cases submitted to the Tribunal
is defined in its Statute and Rules.

Chapter 11- Jurisdiction

Jurisdiction, as a term, has varied connotations. In relation to a court, it
refers to the power or the competence of a court to hear and adjudicate upon
a case, in relation to which its decision is sought. In the context of a state, it
may refer to territorial expanse, such as, by saying that a certain event
occurred within its jurisdiction; it may refer to the powers a state may
exercise over its people, property and circumstances that occur within its
territorial ambit, stemming from the key tenets of sovereignty and legal
status arising out of the position the state holds, with respect to its domestic
or municipal realm.[1138] Jurisdiction plays a rather important role under
international law, since it is an offshoot of sovereign powers, wielding
290

which a state may choose to create, modify or do away with legal

obligations and legal relationships.
Jurisdiction of a state, thus, is clearly founded on territorial sovereignty
although it extends well beyond it. However, there lies quite a marked
distinction as between the powers enumerated above, although the
distinctions tend to blur in practice. A simple case in point is the instance of
an offence committed by a man, in State A, and his subsequent escape to
State B. While State B can indeed subject him to a trial, since they do have
jurisdictional competence for the same, the police officials belonging to
State B cannot enter State A to apprehend him. If they do so wish to try the
perpetrator, they should apply and request the authorities of State A to arrest
and hand over the perpetrator, and to surrender him for trial to State B. This
is a practical exposition of the law as it applies, and indicates the existence
of strong overtones of territoriality and sovereignty. This is clearly
indicative of the fact that while prescriptive jurisdiction can be exercised in
relation to anything occurring within its territorial limits irrespective of the
nationality of its perpetrators, enforcement jurisdiction is exercisable only
subject to the restriction that the perpetrator, or the person for whom such
enforcement action is to be taken is found on the territory of the state. A state
cannot exercise or wield its governmental authority in act or omission on the
territory of another state, without the consent of such other state. Sovereignty
in the relations between states signifies independence.[1139] Independence
in regard to a portion of the globe is the right to exercise, therein, to the
exclusion of any other state, the functions of a state.[1140] While this is the
general rule, there are some situations where it is possible to arrest a
suspected offender, with a lacking jurisdictional basis. If an offender is a
national of State A, commits an act in State B, he cannot be subject to a trial
for it in State C even if he is present there, although State A and State B can
apply and request for him to be handed over for a trial, from State C.
Another exception is the case of states and the exercise in pursuance of their
assertion of law enforcement rights abroad.[1141] The abduction of the
Nazi war criminal Eichmann in Argentina by Israel in 1960,[1142] the
kidnapping undertaken by US agents in the Alvarez Machain case,[1143]
and the case of the Rainbow Warrior,[1144] were examples of exercise of
jurisdiction transcending the territorial limits as provided by the law. The
more recent cases of Hamdi v. Rumsfeld,[1145] Hamdan v. Rumsfeld,
[1146] and Rasul v. Bush,[1147] evidenced plenty of questions being
raised in relation to jurisdiction and the competence of courts, and the right
of a state to detain suspects within its hold.
291

In principle, although jurisdiction is virtually tied to the notion of

territoriality, there happens to be no such limitation in reality. States have
clearly taken the law into their hands in apprehending perpetrators, or
subjecting offenders to extraordinary rendition, or even taking to detention
and bombing of states where they suspect the criminals to be present,
transcending the limits imposed by the law relating to jurisdiction. There is
also the exception of immunity as accorded to officials and diplomats
representing the country, which allows them to steer clear of any form of
questioning in relation to any of their conduct, and any trials undertaken to
decide their culpability. Jurisdiction, while easy in principle, is a rather
complicated issue in practical application. International law, no doubt, lays
down the core tenets to be followed in dealing with the limits and extent to
which a state may exercise governmental functions. But, the practical
application also involves a considerable application of the conflict of laws,
or private international law, which brings forth a solution to the question as
to whether the state in question has jurisdiction to determine the culpability
of the offender, and if that is so, what laws shall be applied in dealing with
the case. It is indeed clear that there are different grounds for the exercise of
jurisdiction and for the rules of private international law. Private
international law seeks to explore issues in the light of domicile and
residence, while international law does not deal with either as a basis.
[1148] The overlap of both branches of the law find place in most instances
involving questions of jurisdiction, since constitutional law of the state
involved also plays a considerably important role in most cases relating to
jurisdiction. Therefore, it would be fair to conclude that the domain of
private international law covers the exercise of legislative, executive and
judicial powers by the government the domain of international law governs
the extraterritorial applicability of jurisdictional prowess and competence.
Kinds of Jurisdiction: The Three Wings
The three wings of any governmental power are best known as the
legislature, executive and judiciary. The legislature passes the law, while
the executive enforces it. The judiciary expounds the law where there is any
ambiguity, and adjudicates any disputes where it arises in relation to the
law, whether in its theoretical sense, or in its application. The ambit and
reach of a state, as mentioned, is called jurisdiction. Jurisdiction, like a
states generic power, bears overtones of the three wings of every
government, legislative, executive and judiciary, and accordingly, each wing
performs related functions through the appointed and recognized authorities
for the same purpose. The authority to prescribe the law is termed
292

prescriptive jurisdiction, while the authority to implement the law so laid

down is termed executive jurisdiction. In essence, prescriptive jurisdiction
relates to the power of a state to prescribe law within and outside its
territory, and enforcement jurisdiction is about the power of the state to
implement the law within its territory.[1149] A third kind is called judicial,
or adjudicative jurisdiction, which refer to the powers of the courts of the
state, to hear and adjudicate upon cases relating to persons, properties and
events occurring within its municipal realm.
Legislative jurisdiction refers to the supremacy of the organs of the state that
derive recognition from the constitution, to make binding laws within the
territorial expanse of the state. However, sometimes, by virtue of being
what is called, a long-arm statute, certain pieces of legislation extend
abroad, or to aliens. States are permitted to enjoy jurisdictional exclusivity
in the legislative sphere, with which it may determine the procedural and
substantive legal set up for its territory and the people on its territory. This,
consequently, is a recognized notion in international law. A state is free to
levy taxes against individuals, who are not within its territory, as long as
there is an acceptable link of nationality or domicile,[1150] a state is also
free to nationalize foreign-owned property which lies within its borders, but
cannot take over any foreign-owned property situated abroad. Albeit vested
with a considerable measure of legislative supremacy, a state cannot adopt a
law contrary to the provisions of international law. There is no room to
plead municipal laws as a justification or as a basis for the breach of an
international obligation.[1151] A state is also not allowed to abuse the
rights it has, in a bid to legislate for its nationals abroad, who may be guilty
of breaching international law.
Executive jurisdiction refers to the capacity of a state to enforce the laws
passed by the legislature, within its borders and within the borders of
another state. States possess sovereignty within their territorial realm, in
that the state is permitted to execute, or to enforce its law within its
territorial expanse.[1152] As a corollary, states may not carry out their
functions on foreign land, nor enforce their laws on foreign land without
express consent of the host state.[1153] A state cannot apprehend or arrest
people abroad, and cannot seize property abroad. The Eichmann case,
[1154] is an example, where Eichmann, a Nazi criminal was apprehended
by Israeli agents in Argentina in 1960. This action was denounced as a
breach of Argentinas territorial sovereignty and was deemed an illegal
exercise of Israeli jurisdiction. States cannot send their military forces into
the territory of another state, except where authorized.
293

Judicial jurisdiction refers to the power of the courts of a state to try cases
where a foreign element exists.[1155] States are permitted to exercise
jurisdictional powers in respect of civil and criminal cases, based on
several principles, such as the territoriality, universality, nationality,
passive personality and protective principles. Jurisdictional competence of
states in issues pertaining to jurisdiction has raised the largest number of
debates and has initiated ample discussions.
Domestic Jurisdiction: Conceptual
Framework
Given that a state is a sovereign, it is supreme in relation to its internal
realm, namely, its territorial expanse. Arising from this rule is the fact that a
state cannot intervene in the domestic affairs of another state. Simply put, a
state cannot interfere with another state in respect of its activities
concerning its domestic realm. The rule has come to be known as the
principle of non-intervention, and is essentially laid down to keep state
activities out of the reach of international law. Some of these activities
include the process of determining the criteria for attaining nationality and
the rules to be followed for an alien to enter the state, along with an
enunciation of the circumstances in which the alien may enter the state and
the rights and duties that are permitted to be enjoyed. While the idea is to
retain the aforementioned within the ambit of a states domestic realm,
international law has begun to make its impact on them. The way a state
deals with aliens on its territory is not left to its discretion entirely, any
longer, especially with the advent of international human rights as a means
to keep any unwarranted harm in check. Article 2(7) of the UN Charter
states that nothing contained in the UN Charter shall authorize the UN to
intervene in matters which essentially lie within the domestic jurisdiction of
any state, or, shall require the members to submit such matters to settlement
under the Charter. The article reinforces the notion of domestic jurisdiction
as it stood in international law, and till date, has been subject to ample
interpretation and explanation. Albeit of considerable importance, the
provision has remained a paper tiger throughout, since it hasnt in any way
prevented intervention by states in the affairs of other states, nor the United
Nations from discussing, debating or adopting resolutions on the internal
policies and activities of member states, consequently whittling down the
ambit of the principle of domestic jurisdiction. A case in point is the postwar decolonization move, the biggest European colonial powers had to give
up their colonies in the wake of a wave of resolutions being passed and
adopted, in relation to self-determination and the grant of independence for
294

the colonies under their wing. Human rights has been another sphere where
the United Nations has transcended boundaries, into dealing with the nittygritties of state policies.
Domestic jurisdiction is not a constant, conceptually speaking, considering
that there is ample alteration and modification with every change in
International Law.[1156] International law impacts the domestic realm, as
much as the converse does, and therefore, it is absolutely futile to so much
as assume that domestic jurisdiction, in principle, can remain in its high
tower of isolation without the reach of international law. In the Anglo
Norwegian Fisheries Case,[1157] the ICJ pointed out this fact in the
context of territorial water delimitation, mentioning that although it is
correct that the process of delimitation is necessarily an act of unilateral
nature, because only the coastal state is competent to carry it out, the
validity of the delimitation process in relation to other states depends
entirely on international law, and can therefore be tested in congruence with
the demands and criteria as laid down under international law.[1158]
Subsequently, the court also followed suit in the Nottebohm Case,[1159]
where it noted that though a state may determine rules in relation to the
process of acquiring nationality, the actual exercise of diplomatic protection
and diplomatic immunity lies within the ambit of international law proper.
It is a clearly established rule in international law, both in custom and treaty,
that there is no room to plead municipal laws as a justification or as a basis
for the breach of an international obligation.[1160] Therefore, one cannot
fathom a situation where the domestic legal system and the process of the
exercise of its jurisdictional powers remains isolated from international
law. This automatically suggests that there is no real rigid segregation
between issues, as being exclusively within the purview of either branch of
law. Nevertheless, as a principle, the conceptual framework of domestic
jurisdiction has considerable theoretical value and sufficient practical value
given that it recognizes the fact that a state is entirely sovereign within its
own territorial expanse.
Civil Jurisdiction
Jurisdiction, in the civil context, is enforced only as a last resort, by putting
into application the sanctions of criminal law. Despite this similarity, plenty
of differences set both apart. Civil jurisdiction primarily applies in plenty
of cases, in a wider context as opposed to criminal jurisdiction.[1161] The
generally followed basis for jurisdiction in civil cases in common law
countries is the service of a writ upon the defendant within the country,
irrespective of the non-permanent nature of his presence.[1162] The
295

practice is different in continental European countries, where the usually

accepted basis for jurisdiction is the habitual residence of the defendant in
the state involved. Certain other states permit the exercise of jurisdiction
where the defendant possesses assets in the state, such as Denmark and the
Netherlands. The ambit of civil jurisdiction does not extend to include
instances of diplomatic protests or collective public opinion, as it occurs in
the case of criminal jurisdiction. Considering such a fact, it has been
generally professed that international law per se, does not quite prescribe
any specific regulations in relation to the restriction of courts jurisdiction in
civil issues.[1163] Jurisdiction in civil cases is not restricted much by
international law, except in cases involving sovereign and diplomatic
immunities as vested in the personnel representing states.
Criminal Jurisdiction
Criminal law and the exercise of jurisdiction under international law has
sparked off debates many a time. It is usually in a rare turn of events when
international law requires the exercise of jurisdiction of municipal courts.
Most relevant rules under international law comprise restrictions and
prohibitions on the ambit and extent of applicability of international law.
Therefore, if a municipal court is found to be exercising jurisdiction in
violation of any of the prohibitions imposed, the state of the individual
injured by the exercise of jurisdiction is allowed to make an international
claim. The defending state cannot plead that the exercise of jurisdiction
derives validity under the ambit of municipal law, and that the trial itself
was carried out in a manner befitting the requirements imposed by natural
justice, fairness and equity. Nevertheless, in practical application of
international law and the notion of judicial jurisdiction, it is found that in
certain instances, international law neither imposes a restriction nor a
requirement that municipal courts hear cases. What it does, instead, is to
offer the municipal court a chance to exercise jurisdiction, which then puts
the municipal court in a position to decide whether it wishes to exercise
jurisdiction, or leave it. Municipal law is then left to decide the
jurisdictional expanse of the municipal courts, and international law merely
takes a step back and imposes a couple of limitations on the discretionary
powers of the states. When it comes to criminal jurisdiction, international
law dictates a number of defined rules upon which jurisdiction may be
exercised. Each principle has a different standing under the present legal
system, some of which derive support from state practice, while some have
gained historical value.
The Territoriality Principle
296

The territoriality principle stems from the fact that every state has the
jurisdictional competence over crimes that are committed on its own
territory, even if they have been committed by foreigners on their soil. The
fount of the notion is the fact that the state has the right to exercise sovereign
rights over its territorial expanse, which in turn permits the state to exercise
a series of legal rights that it possesses.[1164] A state should be able to
prosecute the perpetrators of offences that are committed upon its soil, in
keeping with the notion of equality of independent state, and the right of
sovereign control over its domestic realm. It is also a matter of
convenience, considering that the witnesses to the crime, and in many
instances, the offender himself, will be on the soil of the state.[1165]
It is also a possibility that an offence may begin in one state, and continue
into another, finally being completed there. In such cases, both states have
jurisdictional rights- namely, the state where the act was committed, and the
act where the act commenced. The difference in the nature of the
jurisdictional exercise is, however, that the former is a case of objective
territoriality, based on the basics of the effects doctrine, while the latter is
built on the foundations of the subjective territorial principle.[1166] As to
which state will exercise jurisdiction, is left to the being decided based on
where the accused is present. In the Lockerbie case,[1167] it was clear that
Scottish courts had jurisdiction over the alleged bombers of the airplane
which exploded over Lockerbie, which was in Scotland. Immigration
related offences and conspiracy where offences occur in two or more
states[1168] are other instances where this rule applies. The process of
determining which court could further its jurisdictional competence, by
trying its cases, involves the analysis of the substantial part of the crime
committed.[1169] In such cases, some, or even most of the elements of the
offence may occur outside the State. Therefore, the point at issue is just how
much of the offence needs to occur within the territorial ambit of the state
before it can claim territorial jurisdiction. Plenty of tests exist in this regard.
The most popularly applied theory of all, is the doctrine of ubiquity,[1170]
which permits the state to assume jurisdiction over an offence, which
includes even inchoate offences that are connected to the same, if, a part of
the offence is committed outside the state. This doctrine is also stretched to
include another principle of jurisdiction, the passive personality principle.
Per se, the doctrine has utility in both forms of the territoriality principle,
the subjective and the objective sides. In the former, the doctrine of ubiquity
suggests that jurisdictional competence exists if an element of the offence
occurs in the prosecuting State.[1171] The practical explanation of the
doctrine is found in the Canadian decision in Libman v. The Queen,[1172]
297

where the accused was charged with fraud, whereby he had telephoned
residents of the United States from Canada, and had induced them to buy
some worthless shares of some Costa Rican gold mines, with a bunch of
false statements in a bid to over-hype their values. The fraud-victims sent in
their money to the accused, in Panama and Costa Rica, which was
eventually received back in Canada. In a dissected analysis, it seems clear
that the crime was committed in Canada, the deception itself occurred in the
USA, and the consequence of the crime ensued in Central America.
By using the territoriality principle, a state is permitted to apply its laws to
ships flying its flag or aircraft registered with it, and persons on board the
ship. A state also has sovereign rights over its airspace, and can therefore
try offences committed on board aircrafts that are registered with it.
However, foreign-registered aircrafts are subject to the jurisdictional
control of the state with which it is registered, in relation to offences
committed when the aircraft is in flight.
The role and importance of territoriality and sovereignty in the context of
criminal acts was explained in the Lotus Case,[1173] where a French
steamer, called the Lotus, collided with the Box Kourt, which was a Turkish
collier. The Turkish authorities arrested the French officer of the watch
during the occurrence of the incident, when the Lotus had just reached a
Turkish port. The French officer was charged with the offence of
manslaughter, at which point France protested vociferously against the
charge, while asserting complete lack of jurisdiction on Turkeys part. In
dealing with the dispute, the PCIJ concluded that there could be no
presumptions in favour of restrictions being imposed on the independence of
states. While this was so, it was not available for a state to act outside the
ambit of its permissive frontiers under international law. However, the
Court asserted that this did not automatically imply a prohibition under
international law, of a state from exercising jurisdiction in its own territory,
in relation to any case relating to acts having occurred abroad and in which
it cannot rely on some permissive rules of international law. Therefore,
states were granted a wide measure of discretion that was limited only in
specific instances, by rules of a prohibitive nature. With this decision,
several states began adopting plenty of rules that extended their jurisdiction
beyond the territorial limits, so that the territoriality of criminal law is not
an absolute principle of international law and by no means coincides with
territorial sovereignty.[1174] With this, the French claim that the flag state
bore exclusive jurisdiction over its ships on the high seas was turned down,
on the ground that no rule to that effect had emerged under international law.
298

The court also stated that the damage that occurred to the Turkish ship was
in effect, damage caused to Turkish territory, which gave Turkey the right to
exercise exclusive jurisdiction on the basis of the objective territoriality
principle, without any curbs under international law. The decision has
received ample criticism by several scholars, especially of the fact that the
court construed states as possessing very wide powers of jurisdiction,
which if at all restricted, could only be restricted by proof of a rule of
international law that prohibited the action in question.[1175] Tables have
turned today, and the converse is emphasized upon duly. The principle of
territorial jurisdiction includes within its ambit offences and crimes that
occur not just on land, but also upon the territorial seas, contiguous and
other zones, and on the high seas in respect of the flag state of the ship.
The territoriality rule does not extend to the operation of one states
sovereign control over another, without the latters consent. Therefore, the
officials of a state cannot take steps to take evidence or exercise other forms
of jurisdictional control without the consent of the territorial State. Legal
processes cannot be served directly in another state. If it must be served,
then it should be done in a means as acceptable between the states involved,
in keeping perhaps, with a treaty as has been entered into by both states. A
court should also keep itself within limits when it comes to asking a
defendant to produce documents that have been held in another state. The
exercise of local criminal jurisdiction or even disciplinary jurisdiction over
members of the foreign armed forces hinges entirely on the agreements that
have been entered into with the host state, which usually takes the colour of
a status-of-forces-agreement. Immunity is granted to foreign diplomats, from
the exercise of jurisdiction of domestic courts. This does not automatically
imply that there can be no exercise of jurisdiction over them at all it is just
that it cannot be exercised unless such immunity as granted to them, is
waived.
The Nationality Principle
The jurisdictional competence of every state is evinced in its exercise of
sovereignty over its people and property. A state, as a natural corollary to
its status as a sovereign, is allowed to legislate in order to regulate
activities of its nationals abroad, irrespective of whether they reside there
or are merely visiting. It can prosecute its nationals for crimes committed
anywhere in the world, in pursuit of what is called the active nationality
principle. Being put to extensive use by continental states for a while now,
the principle has moved on to attain universal acceptance.
Therefore, for a state to exercise such jurisdiction there needs to be a link
299

between the state and the entity upon which it seeks to exercise such
jurisdiction. This link, at most times, is provided by nationality. Many
states, such as the United Kingdom and the United States accord
jurisdictional prowess based on nationality. In fact, English courts are given
jurisdictional rights relating to specific crimes only, such as treason, murder
and bigamy, and do not adjudicate upon cases requiring the enforcement of
foreign law. The United States allows for a trial by its courts only for the
violation of the United States Law, and not for the violation of penal
strictures of any other foreign state. Whether a person is accorded
nationality of a specific state or not, is left to the municipal laws of the state
involved to determine. International law functions as an overseer of sorts,
by laying down only certain limits for states to prescribe the criteria that
need to be fulfilled to attain the status of a national. Other states tend to
claim jurisdictional control by holding on to links other than nationality,
such as, the question of long residence or domicile. By general practice, it
can be concluded that these means of jurisdictional exercise have not been
protested against, nor questioned, by other states. In the Nationality
Decrees in Tunis and Morocco case,[1176] the PCIJ, whose opinion was
sought by the Council of the League of Nations, in a dispute between Britain
and France in relation to some French nationality decrees which granted
French Nationality to the children of a few British nationals, stated that the
question of whether a certain matter is, or is not within the jurisdiction of a
state is essentially a subjective question, and depends on the evolution of
international relations. Therefore, it would be in the fitness of things if
questions of nationality are reserved within the domain of municipal law.
Such ideology is also inscribed under international treaty law, as is found
under Article 1 of the 1930 Hague Convention on the Conflict of Nationality
Laws, which explained that it is for each state to determine under its own
law who are its nationals, and, such law shall be recognized by other states
in so far as it is found consistent with international conventions, custom and
general principles of law pertaining to nationality.
Nationality grants to an individual a host of rights. As a national, thus, a
person is allowed to enjoy the status of a valid passport-holder, allowing
him to travel abroad bearing the status of belonging to the state whose valid
passport he holds. A national is also permitted to avail of certain job
opportunities which may not ordinarily be open for non-nationals, such as
those of diplomatic cadres and the like. Additionally, nationals are
permitted to avail of certain rights which are exclusive to citizens and are
not offered to aliens, such as the right to vote. The state, however, is under
an obligation not to mistreat aliens on their territory, and not to conscript
300

them into their armies. Since aliens do not have a link of nationality to other
states, such other states cannot prosecute aliens for crimes committed by
them outside their territory.
Conceptually, nationality has a lot of value and importance. However, there
is no definition for the term under any legal provision. Descriptions are rife,
theories are aplenty. These distinctions tend to conflict with one another.
Municipal laws all accord the status of nationality considerable importance,
but the implications of nationality, i.e., in the form of rights and duties as
ascribed to a national, vary from state to state. In the Nottebohm case,
[1177] the ICJ explained that nationality is a legal bond, with a social fact
of attachment, a genuine connection of existence, interests and sentiments,
with the existence of reciprocal rights and duties, as its basis. Nationality,
thus, is nothing but the outward manifestation in legal terms, of the link as it
exists between the individual and the state that grants him nationality, and, a
related recognition of the fact that such individual is more closely connected
to that particular state in terms of his standing as a person belonging to a
specific state, than any other. In short, he is an individual of that particular
state, bearing the indelible mark of an identity as belonging to a particular
state. Nationality is ascribed to the individual at the time of his birth, which
is called jus sanguinis, which is essentially a case of acquisition by descent
from parents who are nationals of that particular state, and, by virtue of
being born on that particular territory, which is jus soli. These two
principles essentially function as the fount of the conceptual framework of
nationality, i.e., they are the principles upon which the principle of
nationality is itself founded.
In principle, the general rule is that a child born of nationals of a certain
state should be granted the nationality of that very state by virtue of descent.
The idea has been accepted and put into practice by several states. In many
states the child takes on the nationality of his father, some states stating that
this applies irrespective of legitimacy of the child, while some others
require that illegitimate children be accorded the nationality of the mother.
This happens in most civil law countries. Common law countries tend to
restrict the applicability of jus sanguinis, such that where a father has
acquired nationality by descent, it does not mandate that that singular fact
alone is sufficient to accord the child with the same nationality. Common
law practice leans more towards jus soli, which accords nationality to any
child born within its territorial limits.[1178] The rule is not without
exception. Those children who are born to diplomatic personnel, within the
state, do not automatically acquire its nationality.[1179] The applicability
301

and practical utility of the exception varies from state to state.

Another mode of acquiring nationality is by marriage. A woman, upon
marriage, may acquire her husbands nationality. Once again, practice is not
uniform in this regard. In some states, by practice, acquisition of nationality
is automatic. For certain other states, there is a conditional acquisition of
nationality, while, for the remainder, there is no acquisition of nationality by
marriage. The converse has also been an accepted rule for a while, i.e., that
by marrying a foreigner, a woman loses her nationality. The Convention on
the Nationality of Married Women, 1957, states that contracting states
accept that marriage of one of their nationals to an alien shall not
automatically affect the wifes nationality, although it may be true that the
wife may be permitted to acquire her husbands nationality by way of
special procedures, if she may so wish to do.
Given that nationality is in itself a human right,[1180] there is a prohibition
upon discriminating between the genders while dealing with the right itself.
Article 9 of the 1979 Convention on the Elimination of Discrimination
against Women indicates that state parties are to grant equal rights with men,
in the process of acquisition, change or retention of nationality and, in
particular, neither the marriage to an alien nor the change of nationality by
the husband in the course of the marriage would render the wife stateless,
or, force the husbands nationality upon the wife. In relation to the
nationality of children, women and men enjoy equal rights.
Aliens are permitted to apply for nationality by the process of
naturalization, which primarily requires the fulfillment of certain
prerequisites, such as the residence in the state for a stipulated period of
time and that the applicant agrees to uphold and obey the national laws of
the state and other similar requirements, the details of which vary from state
to state.[1181]
The principle of nationality also forms the basis for civil jurisdiction,
especially in issues pertaining to personal status, in several states.
Matrimonial disputes and contractual relations need to be dealt with in
relation to the nationality, which assist in determination of the jurisdictional
status of the states involved. As a practice, however, common law states
base their choice of law on the law of the state where the individual has his
domicile, which, in private international law, refers to the region he intends
as his permanent home.
European continental states, in cases involving criminal jurisdiction,
jurisdiction lies based on nationality, irrespective of where the offence
itself occurs.[1182] On the contrary, common law countries restrict their
302

jurisdictional competence over their nationals abroad for very serious

crimes. While this is so, there hasnt quite been any form of protest against
the extensive use of the nationality principle as a basis for jurisdiction in
criminal cases, by other states.
Nationality as a principle is not restricted only to individuals, but also to
ships and aircrafts. Article 91 of the 1982 Convention on the Law of the Sea
indicates that ships have the nationality of the country whose flags they are
entitled to fly. It is, however, left to the state to determine the conditions and
prerequisites to be fulfilled for the grant of nationality to its ships. For
aircrafts, article 17 of the 1944 Chicago Convention on International Civil
Aviation indicates that aircrafts have the nationality of the state which they
are registered with. Once again the conditions to determine the registration
of an aircraft as a national of a state, is left to the state itself to decide. On
all accounts, as it occurs in the context of individuals, it is necessary that
there subsists a link between the state and the ship or aircraft, in order for
such ship or aircraft to be a national of such state.
The Passive Personality Principle
The passive personality principle refers to the basis of jurisdiction, where a
state is allowed to exercise jurisdiction in the event where an offence is
committed abroad, but has either affected or will affect the nationals of the
state itself. As such, the principle received little support in international
law, originally, but presently enjoys a fairly popular position under
domestic judicial practice. The principle is based on the doctrine of effects,
which, in effect is the objective version of the territoriality principle that
indicates that based on the effects felt on the states territory, even if the
offense itself did not occur on the territory of the state itself.
The origins of the principle date back to the Cutting Case,[1183] where a
defamatory statement was published in Texas, of a Mexican by a citizen of
America, who was then arrested in Mexico, and convicted of the offense
under the laws of Mexico. Mexico asserted that it had jurisdictional rights,
under the passive personality principle. The United States, on the other
hand, protested the exercise of jurisdiction. However, due to there being no
conclusive end to the incident itself, there was a subsequent withdrawal of
the charges against the accused. The principle met with ample criticism in
the Lotus Case,[1184] as part of the dissenting opinion as delivered by
Judge Moore, where a French steamer, called the Lotus, collided with the
Box Kourt, which was a Turkish collier. The Turkish authorities arrested the
French officer of the watch during the occurrence of the incident, when the
Lotus had just reached a Turkish port. The French officer was charged with
303

the offence of manslaughter, at which point France protested vociferously

against the charge, while asserting complete lack of jurisdiction on Turkeys
part. In dealing with the dispute, the PCIJ concluded that there could be no
presumptions in favour of restrictions being imposed on the independence of
states. However, Judge Moore noted that the Turkish criminal code
provided for jurisdiction where a Turkish national was harmed.
Nevertheless, the final outcome of the dispute did not settle the question,
and instead decided the case in keeping with the objective territoriality
principle.
In practice, many states have voiced their opinions in pursuance of deeming
the passive personality as an improper ground for the exercise of
jurisdiction, especially the United States and the United Kingdom. In both,
the Lotus Case and the Cutting Case, the states whose nationality the
accused possessed, namely, France and USA respectively, protested the
exercise of jurisdiction on the basis of the passive personality principle.
Subsequently, in Romania v. Cheng,[1185] it was held by the Canadian
court, that Canada could not extradite nationals of Taiwan to Romania, in
pertinence to a crime that had occurred on the High seas, even though the
victims were Romanians. It is, however, true that the court interpreted the
term jurisdiction with parochial overtones. The principle has been put to
use in the context of international terrorism by France, in 1975,[1186] under
Article 689, section 1 of their Penal Code. In United States v. Layton,
[1187] a US Congressman was murdered in Guyana. The circumstances
implicated the accused, and the killing of a Congressman was an offence of
specific nature under the penal laws of the United States. The Court held
that it also covered deaths occurring abroad, particularly because the
incident sparked harmful consequences in the United States. The District
Court was apprehensive about putting the principle to use. It was accorded
acceptance only because there were other principles that were more
acceptable, and the passive personality principle stood along with them.
The main fears shrouding the application of the passive personality
principle are that it is believed that the principle supports powerful states,
at the cost of the interests of the weaker states.[1188] In addition, it has been
expressed on different accounts that the passive personality principle could
cause the subjection of people to the laws of different states, which, in the
process, would include prohibitions and regulations of which such accused
were possible, and reasonably, unaware.[1189] Ignorance of law being no
excuse for an individual to seek acquittal or justification for his actions,
ultimately, it is the individual who suffers unjustifiably especially since in
304

criminal law, it is a necessary prerequisite for the individual to know of the

grounds of his arrest, and for that to be in his knowledge, he would
definitely need to understand the working of the law itself. Of these, the
latter problem comes into play when there is a difference between the laws
of the states. Nevertheless, the importance of the passive personality
principle has been emphasized most in issues relating to war crimes,[1190]
as a consequence of which states are free to prosecute war crimes
committed against their nationals. The Washio Awochi trial,[1191] where a
Japanese national was prosecuted by the Court Martial of the Netherlands,
for his act of forcing Dutch women into prostitution in a Batavian club. The
basis, of course, was the passive personality principle of jurisdiction.
A further additive in this field, by international law proper, is the
permission to prosecute offences committed against the nationals of cobelligerent states, as was examined in the Velpke Baby Home case,[1192]
where the United Kingdom prosecuted the nationals of Germany for their act
of neglect and mistreatment of Polish children, which occurred in Germany.
In pursuance of an exercise of jurisdiction based on the passive personality
principle in the context of war crimes, the same questions that emerge in the
application of the nationality principle relating to jurisdiction emerge. The
time of the offense is the time at which the nationality needs to be
determined. This was particularly relevant in the Israeli context, where,
Israel sought to apply the passive personality principle in pursuit of
exercising jurisdiction over Eichmann on behalf of the Jewish victims of the
crimes perpetrated by him, in the famous Eichmann case.[1193] Israels
claims were buttressed by the supposition that in relation to the victims,
who, though were not citizens of Israel at the time of the offence, they could
still be acted on behalf of, by Israel, against Eichmann. The basis of these
claims was criticized, since one cannot quite seek to rebuild bridges where
there were none in the first place. Nevertheless, the universality principle
came into play in helping Israels cause.
Another area where the passive personality principle has been put to use, is
in the counter-terrorism efforts that have taken shape in the form of Article
5(1)(c) of the 1984 Convention against Torture, and Other Cruel, Inhuman or
Degrading Treatment or Punishment. Part VII, in its introductory paragraph,
permits a state party to exercise jurisdiction when the victim is a national of
that State if that State considers it appropriate. Article 9 of the 1979
Convention against the taking of Hostages explained in the context of
jurisdictional bases that could be established with regard to the offence, that
even the national state of the hostage could be included as being capable of
305

jurisdictional competence, if such state deems it appropriate to exert

jurisdictional rights.[1194] The passive personality principle was deployed
in the 1984 Comprehensive Crimes Control Act, of the US, where the
Convention was implemented among other things, and the passive
personality principle found enunciation in the course of laying down a
provision that would extend the special maritime and territorial jurisdiction
of the US to any place outside the jurisdictional ambit of any nation with
respect to an offence, by or against a national of the United States.
Subsequently, the Achille Lauro incident[1195] occurred, where an
Egyptian civilian aircraft carrying hijackers of the Italian cruise ship, called
Achille Lauro, was intercepted over the Mediterranean Sea, by Navy
Fighters of the US. The aircraft was forced to land in Sicily. The United
States sought to justify its action by referring to the need to combat
international terrorism. The Foreign Secretary of the United Kingdom
asserted that it was relevant to take into account the international
conventions on hijacking and hostage-taking, none of which mentioned
anything that justified the interception of a civilian aircraft over the high
seas, or, over any area other than the territory of the intercepting state.
Though the apprehension of terrorists and the aversion of terrorism is
indeed necessary and needs to be encouraged, the means pursued need to be
legitimate. Following the incident, the United States adopted the Omnibus
Diplomatic Security and Anti-Terrorism Act, where the criminal code was
amended to include a new provision allowing the US to exercise
jurisdiction over homicide and physical violence occurring outside the
territorial ambit of the US, where the victim was a national of the US. The
provision mandates the requirement of a written certification from the
Attorney General before commencing prosecution, certifying that the offence
was intended to coerce, intimidate or retaliate against a government or
civilian population. The decision of US v. Yunis (No.2),[1196] is also of
relevance. A Lebanese citizen was apprehended by US agents in
international waters, and he was subsequently prosecuted in the US for
allegedly being involved in the hijacking of a Jordanian airliner. The
connection between the US and the hijacking was the presence of American
nationals on board the airliner. The Universality principle and the passive
personality principle were deemed as acceptable bases for the exercise of
jurisdiction, despite the fact that the second principle had a controversial
standing under international law. The court asserted that the international
community recognized its legitimacy, which orchestrated the possibility of
its deployment. Despite the US having opposed its applicability at an earlier
date, it was held that the principle still derived validity in the context of
306

terrorism and war crimes, and a host of other condemned crimes as well.
The Protective Principle
The protective principle, also known as competence reelle, indicates that
states are entitled to exercise jurisdiction over aliens who have committed
an act abroad that is prejudicial to the security of the state in question. Thus,
a state is vested with the right to reserve for itself, the right to prosecute
people whose crimes threaten, or affect adversely in any way, the interests
of the state. Some of the instances where jurisdiction may be exercised on
the basis of the protective principle include espionage, conspiratorial plots
to overthrow the prevailing gubernatorial regime, plots to violate
immigration rules, perjury and forging and falsifying documents and state
currency. While it is a considerably well-established rule under
international law, oftentimes the question arises as to how far it extends in
terms of practice, and what acts come within the ambit of the claimed
jurisdictional expanse.[1197] The most commonly accepted threat is the
way in which states look at the term security in keeping with their own
interests. A piece of journalistic endeavour that engages in criticism of
another state or its policies cannot be tried for sedition.[1198]
Nevertheless, the principle is justifiable on the basis of protection of
interests vital to a state, given that the alien may not actually be committing
an offence under the laws of the state he resides in, and extradition itself
may be refused under the guise of deeming the acts political offences.
The scope and ambit of the principle indicates the likelihood of an overlap
of the protective principle with the objective territoriality principle. In the
Layton case,[1199] it was mentioned that the crime, namely, the murder of
an American Congressman in Guyana, had an adverse impact on the security
or governmental functions of the state, and therefore provided the basis for
jurisdiction under the protective principle. The charges under which the
accused was brought to trial also indicated that the offences were primarily
intended to produce and did produce harmful effects within the state,
thereby permitting the claim of jurisdiction under the passive personality
principle, or the objective territoriality principle.
In the Espionage Prosecution Case,[1200] the East German intelligence
agencys head was prosecuted after Germany was reunified, for having
spied against the former Federal Republic of Germany. In deciding the case,
the court held that he had violated the laws of erstwhile Federal Republic of
Germany by his conduct, albeit having been carried out at a time when a
separate State has existed. Similarly, in In Re Urios,[1201] decided by a
French judiciary, related to a Spanish National who had been in Spain
307

during the First World War, and had been in touch with enemies in France.
After being arrested in 1919, he was sentenced to twenty years
imprisonment on the ground that the substantive offence was not restricted to
the French Nationals or activity occurring within the territorial expanse of
France. Using Article 7 of the erstwhile Code dInstruction Criminelle,
(which spoke of the fact that any alien who is guilty outside French territory
of a crime against the security of the State is liable to prosecution and
sentence under French law if he is arrested in France or if the Government
obtains his extradition), the sentence was passed.[1202] The present legal
provision exhibiting the French incorporation of the protective principle is
found under Article 694, Section 1 of the Code de Procedure Penal.[1203]
In Joyce v. The Director of Public Prosecutions,[1204] the House of
Lords dealt with the question as to whether an alien could be guilty of the
crime of treason in pertinence to acts committed outside the territorial ambit
of the United Kingdom. Pro-Nazi propagandist Lord Haw-Haw Joyce was
originally born in America. In 1933 he fraudulently acquired a British
passport, after declaring that he was born in Ireland. Subsequently, in 1939,
he left Britain, and commenced work with German Radio. In 1940, he
claimed that he had acquired German nationality. He was a resident in the
United Kingdom for a considerable amount of time, and, for some years,
travelled on a British passport while entering into enemy territory, as well.
The House of Lords ruled that jurisdictional rights for Britain did exist.
Joyce claimed to be a British subject and enjoyed the protection of a British
passport. Even if this was in the course of furthering a fraudulent intention,
the status of being a British subject enjoying the benefits of a British
Passport automatically presupposed the fact that there was allegiance to be
owed to the Crown, and if the duty is breached, there would be liability
imposed. It did not matter that the offence of treason itself did not occur on
the territory of the UK, because no state could allow for treason to take
place, and turn a blind eye simply because it occurred outside its territorial
expanse. Joyce was penalized for his conduct.
Subsequently, in Somchai Liangsiriprasert v. The Government of the
USA,[1205] it was stated that courts will pursue a course of action in
keeping with the protective principle as a basis for its jurisdictional
exercise of power, in relation to terrorists, drug offenders and other related
offences that threatened the state. The case, however, was decided based on
the principle of objective territoriality. There is no doubt that the meaning
and import of the language is considerably wide, in that it may even end up
including offences the results of which are directly felt outside the territorial
308

expanse of the State, although technically speaking, the vital interests of the
State must be the ones to be impacted.
In Rocha v. United States,[1206] a conspiracy to violate immigration rules
by following a scheme of sham marriages came to trial. In the charges, inter
alia, it was found that false statements were made to consular officials
abroad. The defendants were quick to assert that the United States had no
competence to hear the issue since it was outside their jurisdiction.
Dismissing their claim, the Court held that though the offence did take place
outside the territory of the United States, it was essentially designed to bear
effects extra-territorially. The Court also ruled that a sovereign state must be
able to protect itself from those that attack its sovereignty. In keeping with
this, therefore, the question of who can enter a state and who cannot is an
integral part of the vital interests of the State. Legislation in the United
States is equally in pursuance of the protective principle. The Omnibus
Diplomatic Security and Anti-Terrorism Act, 1986, indicates that courts in
the US are vested with jurisdiction over the killing of a US national, if it
was done in a bid to pursue the intention to coerce, intimidate or retaliate
against a government or civilian populace. The underlying objective is to
ensure that there is jurisdictional competence accorded to the courts for
offences of purely terrorist nature.[1207]
Israel adopted the protective principle in the process of prosecuting Nazi
War Criminals, particularly in the Eichmann Case.[1208] However, the
District Court of Jerusalem stated that the victims of the Holocaust were not
Israeli citizens, and, it was without doubt that Israel did not exist as a state
during the span of time covered by 1933 and 1945. Jurisdiction under the
protective principle could be exercised only if there is a linking point
between the accused and the state seeking to punish him, in keeping with
international law.[1209] States are free to punish those individuals who
concern the state relatively more that they concern other states, of course,
being subject only to the rules of international law. Keeping to this rule,
Israel had evidently more in terms of a link with the people of Jewish faith,
and given that Eichmann in pursuit of his Nazi allegiance had committed his
crimes against the very same people, Israel had jurisdictional competence.
While the reasoning that has gone into the outcome indicates a roundabout
way, the decision is still accorded plaudits for its enumeration of the tenets
constituting the protective principle. There should be a link of a substantial
character between the State and the accused, and, the offence must concern
the state that wishes to pursue prosecution, more than any other state.
Naturally because it concerns the particular state most, it is likely to relate
309

to one or some of the vital interests of the state, and that works as the
pivotal factor in permitting the exercise of jurisdiction.
The Representational
Principle
As the name suggests, this principle accords a state the right to exert
jurisdiction extraterritorially, by allowing the state to virtually step into the
shoes of a State with a more pressing claim to prosecute the offender. The
process may ensue as a consequence of a request made by a State to such
other state that pursues the exercise of jurisdiction accordingly, or, as a
consequence of a refusal to extradite, in keeping with the norm of aut
dedere aut judicare, which implies either extradite or prosecute. In events
bearing overtones of the latter instance, the State agrees to prosecute the
fugitive either out of voluntary compliance with the requests made to it, or,
in the alternative, out of being a signatory to a bilateral or a multilateral
anti-terrorist convention that requires either course of action to be adhered
to. Jurisdiction exercised on the basis of the representative principle is
usually the product of reciprocal legislation. Evidence needs to be supplied
by the State that is deprived of jurisdiction over the offender, and therefore,
the representative principle is not necessarily a consensual assumption of
the right to prosecute.
The Universality Principle
The universality principle, as the name suggests, refers to a situation where
every state is permitted to exercise jurisdiction in relation to trying specific
offences. The basis lies in the fact that the crimes concerned are deemed
offensive to the entire international community, to every state that constitutes
the international anarchy. Most states have been known to have indicated
that the principle is normally forbidden in international law. The earliest
point when the validity of the universality principle knocked at the doors of
the Court was during the Lotus Case,[1210] but there was no discussion on
its validity per se. Furthermore, individual judges went on to assert that it
was normally in contrast to generally accepted notions under international
law. The implications of the doctrine are manifold- one may be punished
anywhere in the world for what is perhaps not an offence under the laws of
the place where it was committed, in the first place, while it is perhaps an
offence in such other part of the world. Universality can acceptably form the
basis of jurisdiction in the event that it is for the purposes of the prosecution
of acts that are deemed crimes in all, or at least, most countries. This has
evolved into a generic notion, having received a general consensus from
most states in the world. The crimes in whose context universality is used as
310

a basis for the exercise of jurisdiction are war crimes, piracy, hijacking and
international terrorism in all its different manifestations. Additional
offences may always make their way into the list, with the burgeoning of
international agreements that encourage their inclusion therein. The 1973
Convention on the Suppression and Punishment of the Crime of Apartheid,
or, the 1984 Convention against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment, for example, have sparked the
inclusion of Apartheid and Torture as being crimes that could be brought to
trial by a state professing the universality principle as a basis.
The principle of universality functions regardless of nationality, country of
residence and any other links that need to be established with the state
prosecuting the concerned offender. The basis thus, lies in the fact that the
crime is a crime against the entire international society, which is far too
serious to accommodate jurisdictional arbitrage and negotiations.
Universality as a basis of jurisdiction, therefore, is related to the world of
erga omnes obligations that are owed to the entire international community,
and to the principles of jus cogens, which comprises those rules from which
no derogation is permitted. The 1993 Law of Universal Jurisdiction, of
Belgium, was instrumental in according the universal principle ample
importance. The scope of the law was subsequently reduced by an
amendment after the Case Concerning the Arrest Warrant of 11 April
2000,[1211] where the said part of Belgian Law was used to try Abdoulaye
Yerodia Ndombasi, the erstwhile Minister of Foreign Affairs of the
Democratic Peoples Republic of Congo, was challenged before the ICJ.
The International Criminal Court was formed in 2002, and this further
accentuated the decline in the need to have laws providing for universal
jurisdiction, although the court was not supposed to handle crimes having
occurred before its creation.
Opposing contentions, particularly those of Henry Kissinger denounce the
theory of universality as a basis for jurisdiction. Primarily contending that
since all states are essentially equal under the ambit of the UN Charter and
that such equal states go into making the international anarchy, the universal
jurisdiction essentially violates this principle of sovereignty. His core
contention, as is that of most others, is that it would defeat the very essence
of anarchy- Widespread agreement that human rights violations and crimes
against humanity must be prosecuted has hindered active consideration of
the proper role of international courts. Universal jurisdiction risks creating
universal tyranny - that of judges.[1212] However, these concerns have
been quelled with the adoption of Resolution 1674 by the UN Security
311

Council, on 28 April, 2006, which reaffirmed the responsibility to protect

world populations from genocide, war crimes, ethnic cleansing and crimes
against humanity. The resolution also indicates the commitment of the
Security Council towards protecting civilians in the midst of an armed
conflict.
Universality as a basis of jurisdiction has been consistently used in the
context of piracy, and has burgeoned into a fairly long-established and
widely-accepted principle.[1213] It has now come to be accepted that all
states are free to arrest and penalize pirates, provided that such
apprehension or arrest takes place on the high seas, or, within the territorial
limits of the state concerned.[1214] Offenders are penalized irrespective of
their nationality, wherever the criminal activities took place. Piracy differs
under the ambit of international law, from its meaning under domestic law,
which implies instances of violating copyrights. Under international law,
called piracy jure gentium, it includes any form of illegal violence,
detention or restraint, destruction and damage committed in pursuit of
private interests, by crew members or passengers on board a private ship or
aircraft, directed towards another private ship or aircraft, occurring either
on the high seas or on terra nullius, or within the territorial waters of a
state.[1215] Piracy is also said to occur if the offence was merely
attempted, for, it need not be that the attempt be successful to attract penalty.
[1216]
War crimes are also instances where universality forms the basis for the
exercise of jurisdiction. The laws of war govern issues relating war itself,
having emerged from a cache of war crimes decisions emerging at the end
of the Second World War, along with conventions exclusive to war time.
However, in pertinence to the question on guilt for war crimes, particularly
in the context of Nazi persecutions of Jewish people, [1217]American
personnel connected with the Vietnamese War[1218] and many similar
instances, there was ample controversy in dealing with war criminals and
their trials.
The Charter of the International Military Tribunal of 1945 suggested, under
Article 6 that for crimes against peace, the violations of law and customs of
war and crimes against humanity as offences occurring within the
jurisdiction of the Tribunal, there would be individual responsibility. What
the article put down at that juncture has now evolved into a rather weighty
component in international law. The 1946 Resolution passed by the UN
General Assembly accorded these principles unanimous recognition and
acceptance, in that the Tribunals judgment was recognized and confirmed
th

312

explicitly.[1219] In 1949, four conventions, named collectively as the

Geneva Conventions, comprised an enumeration of various crimes,
permitting the exercise of jurisdiction on the basis of the universality
principle, terming them as grave breaches and included offenses like willful
killing, torture, inhuman and degrading treatment, unlawful deportation of
protected persons and the taking of hostages. After nearly two decades, in
1961, the Eichmann Trial[1220] took place, wherein Israeli Law was
invoked to punish Eichmann for his war crimes and crimes against people of
the Jewish Faith, and crimes against humanity itself. In deciding the case,
the District Court of Jerusalem and the Supreme Court of Israel applied the
universality principle to a limited extent. In doing so, the District Court held
that international law needed the legislative and judicial organs of states in
order to bring criminals to trial. Universality as a basis for jurisdictional
powers was applied even though the offences occurred before Israel came
into existence. In 1968, the UN General Assembly adopted a convention,
named the Convention on the Non-Applicability of Statutory Limitations to
War Crimes, and Crimes against Humanity. The convention was a strong
message to indicate to the world that war crimes constituted a separate
segment under the ambit of international law, and could all be tried using the
universality principle as a basis for the exertion of jurisdictional
competence. In 1977, a Protocol was added to the 1949 Conventions, which
in turn expanded the list of offenses, to include more. In most legislation
purporting the exercise of universality as a basis of jurisdiction in
congruence with the universality principle, as it commenced from the
Nuremberg perceptions, most crimes against peace are deemed crimes
committed by the state itself, in pursuit of aggression.[1221] As such, the
attached value of aggression does not theoretically weigh down the
applicability of universality, but this is not to say that practical
consequences are none. A large number of scholars have begun expositing
that the universality principle must necessarily include all crimes against
humanity.
With the burgeoning of a new faction in the form of terrorism and global
terror networks, there has been room to question the likelihood of basing
trials of terrorists on the purport and ambit of the universality principle of
jurisdiction. Before going into the feasibility of including terrorism in the
list, one needs to take stock of the opposing views amongst the acceptors of
the universality principle. The traditional notion, that the universality
principle is a watertight compartment has found favour with scholars and
writers, of which J.G. Starke is one.[1222] The general mindset reflects that
crimes or delicts jure gentium, aside of piracy jure gentium and war
313

criminals raise somewhat different considerations. As a consequence,

therefore, in the context of offences such as drug trafficking, trafficking in
women and children and terrorism, conventions have been put to use in a
bid to deal with their treatment purely on the basis of aut punire, aut
dedere, which implies that the offenders are either to be punished by the
State on whose territory they are found or to be extradited to the State which
is competent and desirous of exercising jurisdiction over them. However,
the modern ideology that surrounds international law has changed the ways
in which one looks at the universality principle. The burgeoning catena of
offences in the international realm, each with a different political, social
and economic implication in its own right, there is a necessity to view the
universality principle as increasingly inclusive, as opposed to purely
exhaustive.
The gravity and implications of the term crimes against humanity has been
recognized in the United Nations Secretary General's Report on the
Establishment of an International Tribunal for the Former Yugoslavia.[1223]
The report explained that crimes against humanity are aimed at any civilian
population and are prohibited regardless of whether they are committed in
an armed conflict, international or internal in character and refer to
inhumane acts of a very serious nature, such as willful killing, torture, rape
committed as a part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious grounds.
Subsequently, the 1998 Rome Statute of the International Criminal Court
also incorporated the universality principle as a basis of jurisdictional
exercise in relation to punishing offenders, accused of crimes against the
international community. Specifically, article 5 lists out the crimes which
fall within the jurisdictional ambit of the International Criminal Court, as
being genocide, crimes against humanity, war crimes and crimes of
aggression. The statute indicates that a crime is one against humanity as
provided for in the statute, if it is found to be a widespread or systematic
attack against any civilian population. Article 25 holds anyone committing a
crime within the courts jurisdiction, individually responsible and liable for
punishment as under the Statute. In addition, the 1996 ILC Draft Code of
Crimes against the Peace and Security of Mankind also speaks of
universality as a basis for jurisdiction for crimes. States are under an
obligation to take such measures as may be necessary to establish their
jurisdiction over the crimes as mentioned under the draft.[1224] Article 9
provides that a state in whose territory an individual alleged to have
committed a crime against peace and security of mankind is present, shall
either extradite or prosecute the individual. The purpose of the article, as
314

explained in the commentary,[1225] is to ensure the broadest possible

jurisdictional expanse over crimes, by using the principle of universality. It
is not enough if an act or omission is perceived to be an international crime.
It is necessary to see that they fall within the ambit of the crimes so
mentioned, for there hasnt been any past instance to show that there has
been an expansion of the list itself.

Prosecuting War Criminals: A Practical lesson

Prosecution of war criminals, in pursuance of laws and rules pertaining to
due process and evidence under national and municipal laws in keeping
with the rule of law, bears ramifications of its own cadre, and ample
practical difficulty. John Demjanjuks trial, nicknamed the trial of Ivan the
Terrible, is a classic example. Given the moniker by victims to the operator
of the gas chambers in the process of murdering scores of Jews at Treblinka,
and Sobibor, two extermination camps, during the 1942-1943, in the throes
of the Second World War, John Demjanjuk was tried for one of the most
horrific crimes in the history of mankind. Proceedings began in 1977, in the
United States. Demjanjuk had secured US citizenship, after lying about his
involvement in a spate of wartime activities on his application form for his
visa. Israel had sought for his extradition from the United States based on a
treaty between both states authorizing extradition requests. Deportation
occurred in 1983, where he was sent to Israel, and stood for trial in 1986. In
the outcome of the dispute in 1988, Demjanjuk was given the death sentence
by the District Court of Jerusalem. He appealed against the decision,
submitting that it was a case of mistaken identity. He was kept in solitary
confinement in a cell near Tel Aviv for five years, until his appeal was
decided. In 1993, his conviction was overturned by the Israeli Supreme
Court, on the ground of reasonable doubts based on evidence that indicated
that Demjanjuk was not Ivan the Terrible, but had been a guard at camps
aside of the Treblinka camp.[1226] Following this, Demjanjuk returned to
Ohio. Again, in 2001, Demjanjuk was subjected to trial on charges that he
had functioned as a guard at Sobibor and Majdanek camps in occupied
Poland, and in Flossenburg camp, Germany. He was ordered to be deported
in 2005, but remained in the US since no country agreed to accept him. In
April, 2009, it was announced that Demjanjuk would be deported to
Germany, to face trial on charges of being an accessory to approximately
thirty thousand counts of murder. A temporary stay was ordered, since he
had filed a petition to reopen his deportation order as deporting him would
amount to torture under international law.[1227] The stay was overturned,
315

and immigration agents began his deportation. He was scheduled to fly to

Germany, but the order was reversed with another stay being granted. In
May, 2009, Demjanjuks appeal was rejected, and he was ordered to
surrender to US Immigration agents for deportation to Germany. In July
2009, he was finally, formally charged with 27,900 counts of accessory to
murder, with the trial commencing in November 2009. As of now, on 15
January, 2011, Spain has requested a European arrest warrant to be issued
for alleged Nazi war crimes, while Demjanjuk was still on trial in Germany.
[1228]
A ninety-year old Demjanjuk still faces prosecution, and is part of one of the
most longest-drawn trials in the history of the worlds jurisprudence. All
states, Israel and the United States, and now Germany, are disposed to
prosecute Nazi war criminals, and without doubt, so much time, money and
effort has been spent on the procedure. Notwithstanding the merits of the
case, upon which frugal speculation can be permitted considering its sub
judice status, one cannot help but wonder that procedure and perfunctory
obligation weigh down the course that law must take in bringing criminals to
book.
Universal Jurisdiction and Terrorism: A New Path
Terrorism is certainly to find inclusion in the list, if not for anything else. In
a world that has now historically been segregated into pre and post
September 11, 2001, there has definitely been a profound impact on the
international legal realm with the advent of terrorism in its warped and
modern form. Terrorism is now a faction that knows neither religion nor
race; neither caste nor creed; neither nationality nor nomenclature; and
neither age nor affiliation. As a faction, thus, it has emerged significantly as
a crime against the world at large, therefore being tantamount to a crime
against humanity. In terms of definitive scope, the United Nations Secretary
General's Report on the Establishment of an International Tribunal for the
Former Yugoslavia , which noted that, Crimes against humanity are aimed at
any civilian population and are prohibited regardless of whether they are
committed in an armed conflict, international or internal in character and
refer to inhumane acts of a very serious nature, such as willful killing,
torture, rape committed as a part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or
religious grounds.[1229]
September 11, 2001 was hardly an isolated incident, as subsequent
instances reared their ugly heads, claiming lives and property aplenty. A
recently mooted point, in the United Kingdom, is the mindset that the United
th

316

Kingdom would reciprocally take up cudgels for any other state in relation
to terror being perpetrated against it, in return for such states similar
gesture towards the United Kingdom itself. Terrorism sits smugly at the
confluence of law, crime, politics and international relations. Terrorism is
no ordinary crime, considering that its targets are not individual people, but
states. International law, which regulates states and their inter-relational
dynamics, needs to be awake to the requirements of states in tackling
terrorism. The first fallacious point lies in the fact that there is no definition
for the term under international law. At minimum, it simply implies an act
peppered with violence, committed primarily for a political purpose.
Therefore, states are both targets, and sometimes sponsors of such terror.
Therefore, this indicates political and gubernatorial overtones, which
complicate jurisdictional issues further, since there is a need to approach an
authority above the state, to settle the issue and pin liability, in furtherance
of an attempt to invoke law enforcement upon the state that has violated the
norms of international law. This is of course, conspicuous by its absence in
international law, considering the anarchical structure it hinges upon.
Two different forms of terror exist- those perpetrated by non-state actors
who exist in the form of transnational terror outfits, and those perpetrated
with the backing of a state in financial or any other form, which is called
State Sponsored terrorism. In the former context, the question has a clear
answer. If these terror outfits have neither links of nationality, nor any
affiliation to a state in terms of the crime they commit, there should be fullfledged authority for every state to moot their trial, either based on their
presence in their territory, or on the basis of any trails leading to their
involvement in the crime, as found on their domestic expanse. The
universality principle, no doubt, has to play a role in such instances, for
without international cooperation a terrorist or a terror outfit may slip
through the fingers of the law, and find itself free of any form of
penalization, which would hardly bode well for the international arena.
States need to be proactive in apprehending terrorists, for this is not one
states battle alone. If a state is not propping the terrorist or the terror outfit
up, it only means that such entities function in their capacities as non-state
actors, and should therefore necessarily involve concerted action in their
apprehension, extradition or prosecution and punishment. Failing such
concerted effort, there would be more instances akin to the United States
invasion of Afghanistan and Iraq. Even if there are no bilateral treaties to
the effect of requiring state-cooperation, the eleven terror
conventions[1230] need to be pivotal points in determining the basis of
jurisdiction, and the cooperation of states in apprehending terror.
317

The other instance, namely, state sponsored terrorism as a sort of a situation

found its roots in the context of the Lockerbie Bombings,[1231] where an
aircraft, the Pan Am Flight 103, exploded over Lockerbie, Scotland on 21
December 1988, out of a bombing that was sponsored by Libya. Libya in
turn indicated that it would prosecute the suspects, who both Libyan
nationals living in Libya, in its domestic courts. However, given that there
was evidence that Libya was the face behind the bombings, the United
Kingdom and the United States insisted that Libya extradite them to either
state, for their fair trial. As a consequence of a deadlock of sorts, the matter
knocked at the doors of the Security Council, which passed a resolution
indicating that the suspects had to be extradited. Subsequently questioning
the Security Councils authority, Libya immediately sought action against the
United Kingdom and the United States in the ICJ. In such instances, state
sponsorship and state-backing puts a massive spoke in the wheels of the
law. Libya would ordinarily be capable of being held responsible for the
enforcement of the law against air sabotage, as would relate to the case.
But, that would hardly be reliable, since the government itself has
authenticated the commission of the crime itself. Therefore, the prosecute or
extradite principle, which operate with an inbuilt limitation in the form of
the fact that they do not provide for the predictable situation in which the
crime was sponsored by the State that bears the custody of the suspect itself.
State sponsored terrorism sparks the need for a supra-national authority that
would assist the process of bringing states sponsoring terrorism to book.
This would, in turn, result in a little tug-of-war of sorts, between the desire
to remain a staunch sovereign without giving up any ounce of power, and the
desire to bring terrorism to book. The idea of internationalization of
enforcement of criminal law through approaching the ICJ, ICC or the
Security Council, or through the universality principle as the basis of
jurisdiction is founded fundamentally on the belief that neither the
perpetrating state, nor the victim state, can provide a neutral and fair forum
for the prosecution procedure. This is essentially due to the political colour
that terrorism has. However, even if one were to look at the feasibility of
the implementation of this ideology, there isnt a single international
institution that has gained the trust of all states, sufficiently to enable them to
try such issues. As a consequence, therefore, prosecution of terrorism and
terror outfits has been relegated to national courts, and oftentimes takes
place in the victim state. The arrangement is fraught with imperfections, no
doubt, but shall continue, at least into the foreseeable future.
Jurisdiction arising out of Treaties
st

318

Treaties are also instrumental in constructing jurisdictional rights for states

to try offenders and perpetrators of certain crimes. Instances of such cadre
include crimes of drug trafficking, slavery, destroying submarine cables and
the like.[1232] Though in effect, they do provide jurisdictional rights, such
rights stop short of jurisdiction based on the universality principle.
Furthermore, it is also seen that a hybrid version of universality as a basis,
comes to be in the form of quasi-universal jurisdiction, as provided by some
conventions, where jurisdiction can be exercised based on a variety of
bases, accompanied by an obligation for the states themselves to establish
jurisdiction under their respective domestic laws. Most such offences have
a considerably significant impact on the international realm, and therefore
some bear tags of being jus cogens. The general view in relation to such
kind of instances has been to employ the universality principle as a basis for
jurisdictional exercise of power, particularly where the violation of a norm
of jus cogens comprises the crux of the crime.[1233] However, in such
occasions, international law clearly allows for the states themselves to put
their domestic legal provisions to use, in a bid to exercise jurisdiction in
such instances, where the apprehension of the offender is foremost. This is
where there is a deviation from the universality principle. If a state
apprehends the offender on its own territory, or on the high seas or in any
zone that is terra nullius, it may well go ahead and try the individual, which
implies the circumstantial nature of jurisdiction, which is at best, quasiuniversal. Antonio Cassesse deems this a case of conditional universal
jurisdiction.[1234] On the contrary, in Congo v. Belgium,[1235], Judges
Higgins, Kooijmans and Burgenthal in their Joint Separate Opinion asserted
that the situation was better understood as an obligatory territorial
jurisdiction over people, or, the jurisdiction to establish a territorial
jurisdiction over persons for extraterritorial events, as opposed to universal
jurisdiction. Several treaties adhere to this model of jurisdictional
competence, in the process providing for specific offences to be made
criminal offences within the domestic orders of the states themselves. States
are to either extradite or prosecute the offenders, and jurisdiction is
permitted to be exercised on several grounds, be them territoriality or
passive personality or protective principles. The crux of these treaties
indicates the inclination of states to support one another, in a bid to create
room for mutual cooperation and mutual assistance.[1236]
Extradition, Extraordinary Rendition and
Jurisdiction
Extradition is an act undertaken in pursuance of the principles of mutual
319

cooperation and mutual assistance. The practice simply refers to the handing
over of suspected and convicted criminals from one state to another, when
such criminals have fled abroad in a bid to avoid any form of legal
consequences for crimes committed by them in the place they have fled
from. Extradition per se, is based on the existence of a treaty upon which it
shall be undertaken. It is not an obligation under customary international
law.[1237] The general consensus in international law is that a state does
not have any obligation whatsoever, to surrender any alleged criminal to
another state. This hinges upon the purport and ambit of the principle of
sovereignty, which holds that every state has control and legal authority
over the people within its borders. As a consequence, thus, plenty of states
have gone into bilateral treaties and agreements with other states, in a bid to
ensure that they have the machinery installed should the occasion warranting
its usage arise. At the same time, however, it is necessary to note that not
every state in the world has extradition bilateral with every other state in the
world. States, however, are free to decline from entertaining any requests
for extradition by way of enacting a law to help them do so. The most
commonly found spokes in the wheels of extradition include the following:
1. Failure to fulfill double criminality, which implies a requirement
where the act for which extradition is sought for needs to be an offence
punishable by law in both, the requesting and requested states.
2. Political crimes, where the requested state may refuse to extradite the
accused for an act that is essentially a crime involving a political
colouration.
3. Possibility of certain punishments being imposed, whereby states
refuse to extradite individuals under the fear of his likelihood of facing
the death penalty, or sometimes even torture. Some states are known to
refuse extradition to states that administer penalties that they
themselves do not.
4. Jurisdiction, where states may refuse extradition under the guise that
the requesting state has no jurisdictional rights to pursue a trial.
5. Citizenship of the accused in question, where some states are known to
refuse extradition of their own citizens, since they themselves have
jurisdiction over their citizens.
Several states are known to deny extradition requests if their government
opines that the offense is a political crime. Refusal of extradition on the
ground that the death penalty is administered is often seen to occur in
Canada, Mexico, Macao and several European states, unless they are each
320

assured that the death sentence will not be passed, or carried out. In
Soering v. United Kingdom,[1238] the European Court of Human Rights
held that it would violate Article 3 of the European Convention on Human
Rights to extradite a person to the United States from the United Kingdom in
a capital-punishment case, which occurred on account of the harsh
conditions on death penalties and the uncertain timescale within which the
sentence would be executed. Most such restrictions exist in the treaties
themselves, as agreed upon by the governments. States such as France,
Germany, Russian Federation, Austria, the People's Republic of China, the
Republic of China (Taiwan) and Japan, forbid the extradition of their own
citizens either.
Extradition thus implies a setting where there lies some form of cooperation
between different countries, in civil, criminal and administrative matters,
based upon the dictates of a bilateral or a multilateral treaty.[1239]
Cooperation may manifest itself in different ways. A criminal may seek
refuge in a state which has no jurisdictional rights to try him, and such state
may hand the individual over. Another example is where a criminal seeks
refuge in a state, which, though has jurisdiction to try him, does not do so
because all the necessary evidence, witnesses and other requirements are
abroad. Such state may endeavour to extradite him for his trial to take place
accordingly. However, where a state does not extradite an individual,
chances are, that the requesting state may seek to take the law into their own
hands, by making a foray into their territory and apprehending the
individual. Albeit a violation of territorial sovereignty, such apprehension,
which is called either extraordinary rendition or irregular rendition, does
not preclude the pursuit of a trial in the course of lawful exercise of
jurisdiction. Per se, the entry of the officials or individuals of one state into
the territory of another state without its permission constitutes a violation of
the norms of international law, such as non-intervention involving state
responsibility, with the sole exception of self-defense.[1240] While, in
principle, it is possible to question the entire act as being a wholesome act
of violation of state sovereignty, augmented by the exercise of jurisdiction,
it has not been put into practice.[1241] A line is drawn demarcating
apprehension and exercise of jurisdiction for prosecution. Amongst
apprehensions themselves, plenty of different instances exist. Apprehension
may occur on the high seas, or on the territorial seas, or even on the territory
of another state devoid of its consent. In the last segment, again, there is a
two-fold bifurcation, implying apprehension without consent occurring on
another states territory, either with which it has an extradition territory, or
does not. Depending upon the offences concerned, apprehension and the
321

means used to execute it, the question of whether any irregularity in the
procedure would interfere with the process of prosecution will be analyzed.
Practice varies abundantly. The American practice indicates two divergent
ways. In Ker v. Illinois,[1242] and Frisbie v. Collins,[1243] it was held
that the government's power to try a criminal defendant is not impaired by
the defendants having been brought back illegally to the United States from
a foreign country. In US v. Toscanino,[1244] however, it was held that the
rule of jurisdiction being unaffected by illegal apprehension should not be
applied where the presence of the defendant has been procured by use of
force or fraud, has to a considerable extent been eroded. However, in the
subsequent ruling of US ex rel. Lujan v. Gengler,[1245] it was held that the
rule so laid down is limited by exceptions to cases of torture, brutality and
similar outrageous conduct, which, if occur, would affect the exercise of
jurisdiction. The issue was dissected in more detail in the case of US v.
Alvarez-Machain,[1246] where an extradition treaty subsisted between
Mexico and the USA, in the context of which the Court ruled that where the
terms of an extradition treaty in force between the states concerned
prohibited abduction of suspects and alleged offenders, jurisdiction in
pursuit of such mode of apprehension cannot be exercised. In the absence of
such treaty, the Ker-Frisbie rule would apply without restriction. As for the
United Kingdom, the approach finds some modification. In R v. Plymouth
Justices, ex parte Driver,[1247] it was held that once a person comes into
the lawful custody of the states authorities within the states jurisdiction,
the means used to apprehend him cannot be questioned, and therefore,
jurisdiction may continue to be exercised. Subsequently, however, in R v.
Horseferry Road Magistrates Court,[1248] it was held that where an
extradition treaty subsists, if he has been forcibly apprehended, the courts
will refuse to exercise jurisdiction over him, since the stipulated procedures
as laid down by the extradition treaty cannot be violated. Entrapment as a
means of apprehension is also outlawed in the presence of an extradition
treaty.[1249] Famous instances of extraordinary rendition in other parts of
the world indicate different takes on the issue. In the Abu Omar Case,
[1250] where Hassan Mustafa Osama Nasr (Abu Omar), was kidnapped by
the CIA in Milan, Italy, as he walked to his Mosque for his noon prayers,
and then deported to Egypt. He was flown to Ramstein, Germany, after
which a second plane took him to Cairo, where he was imprisoned and as
per his claims, even tortured. At the time of his disappearance, Italy was
investigating allegations that purported that Nasr had tried to recruit
jihadists. Prosecutor Amarando Spataro declared that his abduction was
touted as illegal as it violated Italian sovereignty and disrupted ongoing
322

police investigation.
Conflicts in exercise of Jurisdiction
Plenty of bases exist in pursuance of which a state may exert its
jurisdictional prowess over a criminal. Several states may, as a
consequence, have powers that run concurrently. This paves the way for a
different question altogether, as to whether the exercise of jurisdiction by
one state creates a bar to the subsequent process of prosecution in other
countries. While this does indeed find an answer in the affirmative in some
states, in some others, this is not so. International law itself does not offer
an answer to the issue. As a consequence, therefore, there are plenty of
difficulties in the process of trying criminals. Nevertheless, human rights
and its burgeoning presence in international law has proved to be an
exception, preventing a few obstacles of this sort. Nationality as a basis for
jurisdiction and the exercise of jurisdiction on the basis of objective and
subjective territoriality has sparked off more difficulties than any other
principle, since the laws of the states involved may tend to permit, prohibit
and mandate a certain act or omission, which in turn may create
contradictory results. This arises more commonly in instances of economic
disputes, where states have been found to enact blocking statutes to defeat
the exercise of jurisdiction by another state that wields power as a
consequence of an extraterritorial statute. The exertion of economic
sanctions by the United States in pursuance of its exercise of powers as
under the ambit of the Helms-Burton Act, 1996,[1251] which was signed by
erstwhile US President Bill Clinton in response to the shooting down by the
Cuban Air Force of two planes, flown by an organization of CubanAmerican origin, in 1996. The act stipulates that nationals of third states
dealing with American property expropriated by Cuba, using such property,
or making benefit of the same, may be subjected to a suit for damages before
courts of America, and even be barred from entering the United States.
Many protests were made, because of the ambit and purport of the act,
which in effect was undermining international law.
The implications of jurisdictional powers and the need to pursue them are
manifold. However, care must be taken to ensure that the very essence of the
procedure should remain subservient to substantive law, to see that
jurisdiction is rationally exercised for the sake of bringing the offender to
book, and not for the assertion of one states superiority over the other.

323

Chapter 12- Jurisdictional Immunities

While a state has rights to exercise jurisdictional power over individuals in
relation to crimes, there are certain instances where a state must refrain
from pursuing exercise of jurisdiction. Certain special factors exist, which
preclude a states exercise of its jurisdictional rights and powers. These
exist in the form of immunities from jurisdiction, as are accorded with a
certain segment of people, vested with specific powers as granted by the
state they represent; and in the form of exceptions under the law, to the usual
application of the states powers under the law.
Jurisdiction stems from a sovereign exercise of power, which keeps in
check the respect and importance attached to the supreme rules of equality,
non-interference and sovereign powers of states. Jurisdiction, as has been
explained, confines the powers of a state to the territorial limits, within
which a state may lawfully exercise its legislative, executive and judicial
powers, free of any form of interference by external powers and elements.
As much as jurisdiction is rooted in the principles of territoriality and
political sovereignty, the immunities from jurisdictional exercise,
irrespective of whether they relate to the state itself or its diplomatic
representatives are also rooted in the two principles. By all means, even if
diplomats or ambassadors of other states are found on the territory of one
state, such state cannot exercise jurisdiction over these foreign
ambassadors, because of the rules of immunity from jurisdiction. This
signifies derogation from the generic powers of jurisdictional powers, but,
is an integral facet to according recognition and respect for the sovereignty
324

of other states, and also endeavours to maintain the equality of states in the
international anarchical realm.
In terms of the segments of subjects that are immune from jurisdiction of
municipal courts, there are two categories, foreign states which enjoy
sovereign or state immunity, and diplomatic agents of states which enjoy
diplomatic immunity. Other burgeoning spheres include international
organizations and their staff.
Sovereign or State Immunity
Sovereign immunity simply refers to the rules and principles that permit a
foreign state to claim freedom from the jurisdictional competence, whether
legislative, judicial or executive, of another state which, in such contexts, is
known as the forum state.[1252] The roots of the principle date back to the
times of kingship, where a king and his kingdom could not be subject to the
jurisdictional exercise of power by another state. Sovereignty, for a long
time, was deemed as adherent to a particular individual wielding power in
a particular state, and was not an abstract manifestation of the existence and
power of the state itself.[1253] With this being the backdrop, the general
notion was that the sovereign could not be made subject to the judicial
proceedings of his country, nor of another country. Were it true that a court,
or for that matter, either of the remaining wings of the judiciary could wield
power over the sovereign, the very core essence of what the sovereign itself
stood for, would be eroded. Therefore, in a nutshell, the system involved a
case where the sovereign, was effectively above the law. The ruler was
equal to the state, therefore according absolute immunity to the ruler, with
parochial exceptions.
Consequently, with the rise in supremacy of the tenets and implications of
the rule of law concept, the personal angle to the sovereign whittled away,
until all that remained was the chair and its value. State sovereignty began
to take on abstract overtones, as slowly, the notion that the king could do no
wrong came to be replaced by responsibility of the sovereign and suing the
crown. Consequently, the king began to find himself embroiled in the thick
of legal disputes. However, this was easier to manage within the realm of a
states municipal legal set-up. With time, international law instilled the
importance of maintaining the sovereign rights, independence and equality
of states. This inculcated the notion that a state cannot try a foreign
sovereign in its municipal realm using its judicial apparatus devoid of such
states consent, for it would virtually undermine the notion of sovereignty
and equality of states. [1254]
Sovereign immunity hinges upon territoriality as a principle for jurisdiction.
325

This relation has been highlighted many a time, in the course of judicial
decision-making. In Schooner Exchange v. Mc Faddon,[1255] the
Supreme Court of the United States had explained that perfect equality and
absolute independence of sovereigns have given rise to a class of cases
where each sovereign is understood to waive the exercise of a part of that
complete exclusive territorial jurisdiction, which has been stated to be the
attribute of each state. In Ex Parte Pinochet No. 3,[1256] Lord BrowneWilkinson explained that it is a basic principle of international law that one
sovereign state cannot adjudicate upon the conduct of a foreign state, since
the latter is entitled to procedural immunity from the processes of the forum
state, and such immunity extends to civil and criminal liability.
Sovereign immunity essentially creates two implications. Firstly, the
doctrine deals with the immunity of a foreign state, from the exercise of
jurisdiction of municipal courts of another state in a bid to pursue the
adjudication of a claim against it arising out of any cause of action, and,
secondly, the exemption of a foreign state from being acted upon in
pursuance of enforcement measures against its property, especially when the
issue relates to the execution of a municipal court decision.[1257] As such,
the doctrine and its related line of rules are found in customary international
law. However, contrary to state responsibility and its related cache of
principles, the system of rules pertaining to state immunity have evolved out
of domestic judicial decisions, as opposed to the former case of
international decisions. Needless to say, therefore, there have been plenty of
contradictory rules and notions. Nevertheless, with time, more and more
convergence has come to be, with the generic understanding of the needs of
the international realm by states, paving the way for international
agreements on the subject, such as the 1972 European Convention on State
Immunity, the 1982 Montreal Draft Convention on State Immunity and the
2004 Convention on the Jurisdictional Immunities of States and Their
Property.
The Law on Sovereign Immunity
The UN Convention on the Jurisdictional Immunities of States and Their
Property, 2004, has not come into force just yet. Per se, in terms of the text
of the convention, it is still unclear as to which portions of the text constitute
customary international law. Nevertheless, the convention stands out as the
only piece of legislation on the subject, it provides a considerably clear
basis on which one could study the subject, and understand the contents of
customary international law. The preceding legislation on the subject is the
European Convention on State Immunity, 1972, which is essentially
326

concerned with reciprocity in enforcing judgments by the parties to it. This

convention has influenced the UN Convention. Article 26 of the UN
Convention provides that nothing in it shall affect the rights and obligations
under existing treaties on State Immunity.
Article 2(1) (b) needs to be read in order to understand exactly who enjoys
state immunity. The term state is described as meaning the state and its
various organs of government, constituent units of a federal State or
political subdivisions of the State, which are entitled to perform acts in the
exercise of sovereign authority and are acting in that capacity, agencies or
instrumentalities of the State or other entities to the extent that they are
entitled to perform and are actually performing acts in the exercise of
sovereign authority of the State and representatives of the State acting in that
capacity.
The convention, under Article 3, establishes that it is without prejudice to
the privileges and immunities enjoyed by a state under international law in
pertinence to its diplomatic missions, consular posts, special missions,
missions to international organizations or delegations to organs of
international organizations or to international conferences, and persons
connected with them. Clause 2 of the article asserts that the convention is
without prejudice to the privileges and immunities accorded under
international law to the heads of the State, rationae personae, and to the
immunities enjoyed by a State under international law in relation to aircrafts
or space objects owned or operated by a State. Article 5 explains that a
state enjoys immunity in respect of itself and its property, from the
jurisdiction of the courts of another State, subject to the provisions of the
Convention itself. Article 7 is an exception to article 5, in that it speaks of
express consent in pertinence to the exercise of jurisdiction. Article 6
elaborates upon the methods that may be followed in a bid to give effect to
state immunity. Clause 1 indicates that a state shall refrain from exercising
jurisdiction in a proceeding before its courts against another state, and to
that end shall ensure that its courts determine their own initiative that the
immunity of that other State under article 5 is respected. Article 8 provides
that a state cannot invoke immunity from jurisdiction in a proceeding before
the court of another state if it has instituted the proceedings by itself, or, has
intervened in the proceedings or taken any other step in pertinence to the
merits. However, if the state satisfies the court that it could not have
acquired knowledge of on which a claim to immunity can be based until
after it took such a step, it can claim immunity based on those facts,
provided it does so at the earliest possible moment. Part II enumerates a list
of cases in which state immunity cannot be invoked: Commercial
327

Transactions,[1258] Contracts of employment,[1259] personal injuries and

damage to property,[1260] ownership, possession and use of property,
[1261] intellectual and industrial property,[1262] participation in
companies or other collective bodies,[1263] ships owned or operated by a
state,[1264] and in the context of arbitration agreements.[1265]
Immunity does not just exist to the judicial proceeding itself, but also to prejudgment measures of constraint, as explained by Article 18, and to postjudgment measures as indicated by Article 19.
Absolute State Immunity
Originally, state immunity or sovereign immunity was essentially absolute.
The principle hinges on the face that since states are fundamentally
independent and legally equal, no state can validly exercise jurisdiction
over another state without its express consent permitting the exercise of
jurisdiction. The courts of one state, therefore, cannot exercise jurisdiction
over another state. At the inception of the rule and for a considerable
amount of time after, the ruler was equated with the state, and was deemed
one with the state. Therefore, the head of a foreign state possessed complete
immunity, even for the acts done in his private capacity.[1266] Customary
international law, in the original form, allowed the application of the
doctrine of absolute state immunity, covering all spheres of state activity,
with very narrow exceptions. In its modern form, however, the doctrine is
one of qualified immunity. Under this mechanism, immunity is granted to
foreign states only in pertinence to their governmental acts, namely, jure
imperii, and not for any commercial activities, namely, jure gestionis. The
distinction has come into play on account of the burgeoning activity of states
in economics, internally and externally. Several states have, in their past
practices, upheld the rule of absolute immunity, which have in turn,
permitted other states to enjoy immunity in pertinence to all their activities,
inclusive of activities of a commercial nature. Nevertheless, things changed
with modifications made by different states at different times. In 1952, the
United States abandoned the absolute immunity rule, and replaced it with the
qualified immunity rule.[1267] England made a change much later, in the
1970s, after continually following the original absolute immunity rule out of
obedience to the precedential decisions in keeping with the rule. The 1978
State Immunity Act, in Britain, enunciated that no foreign state had immunity
in pertinence to their commercial transactions. Several other states also
began enacting laws in a bid to apply the restrictive application of absolute
immunity. Present day practice indicates more reliance upon the tenets of
qualified immunity as opposed to absolute immunity, although the latter still
328

finds its presence in a couple of states.

The United Kingdom has been one of the states practicing the absolute
immunity approach extensively. In the Parlement Belge case,[1268] it was
explained that the United Kingdom declines to exercise by means of its
courts any of its territorial jurisdictional powers over the person of any
sovereign or ambassador of any other state, or over the public property of
any state which is destined for public use, though such sovereign,
ambassador or property be within its jurisdictional limits.
Qualified State Immunity
With the steady emergence of jurisprudence from the side of international
law, in the form of conventions and treaties, such as the European
Convention on State Immunity 1972 and the Montreal Draft Convention on
State Immunity, 1982, more importance began to be attached to the notions
of qualified immunity. With the end of a decade therefrom, the International
Law Commission witnessed the evolution of a consensus in favour of
qualified immunity, in pertinence to the United Nations on its Draft Articles
on the Jurisdictional Immunities of States and Their Property.[1269]
Nevertheless, this did not automatically create a condition where there is no
difference in practices of states, but rather, explains the fact that there is still
a glaring need for codification and agreement in an international treaty on
the issue, with which different international organizations are concerned.
Furthermore, there is no implication that any specific restrictive theory of
immunity has formed the norm under international customary law, as binding
upon all states. The generally accepted view, thus, is settled at the notion
that states are only under an obligation to grant immunity to other states from
the jurisdictional expanse of national courts if the claim is fought against the
foreign state, based upon its conduct de jure imperii. Immunity, thus, is to be
granted if execution is sought against property of the foreign state which
serves public purposes. States have a discretionary right in determining
whether or not to grant immunity in cases pertaining to conduct or property
de jure gestionis of a foreign state, since it does not have any obligation to
grant immunity.
The segregation of gubernatorial and commercial activities is not concerned
with the propriety of the acts involved, but rather on the appropriateness of
municipal courts to decide disputes as they arise from such acts. When the
act itself is of such a nature that only a state may embark upon it, such act
comprises considerable political overtones, and therefore do not qualify as
capable of being judged by the municipal courts of states. Such activities
may relate to things like expropriation of property, or conducting nuclear
329

weapons. As a consequence of the nature of the issues itself, it is possible

that the municipal courts may decline the exercise of jurisdiction even when
the foreign state is not made party to the proceedings themselves.[1270] As
a necessary adjunct to this rule, states are free permitted to exercise
jurisdiction through their municipal courts in pertinence to acts that can be
performed by states and private individuals alike, such as entering into
commercial and contractual relationships and the like. There would be
hardship only if the municipal courts were found not exercising jurisdiction
in such issues, as opposed to the contrary.
The qualified immunity notion is not free from objection and debate. The
generally found objection to the applicability of the doctrine in the context
of jurisdiction is that the difference between governmental and commercial
acts is not a precise, watertight segregation. As a consequence, it is
believed that state immunity faces conceptual challenges under the qualified
immunity segment.[1271] In the case of Argentine Republic v. Amerada
Hess Shipping Corporation,[1272] immunity was accorded to Argentina
against a claim filed by the owner of a tanker which was attacked and
damaged on the high seas by the air force of Argentina during the course of
the Falklands war. In arriving at the decision, the Court rejected the
contention of the claimant, which purported that sovereign immunity could
not be accorded to Argentina since the act was a violation of International
Law. This indicates that there is no doubt in pertinence to a states exercise
of quintessential state functions. However, the problem comes into place in
event where foreign states use private commercial activities to pursue
public purposes. In practice, it is found that certain states base the
differentiation between the two kinds of acts, namely, de jure imperii and de
jure gestionis, based upon the nature of the act. This qualifies as the
objective test.[1273] Certain other states rely upon the subjective test,
where they examine the purpose of the act. However, in actual practice, the
distinction tends to blur, considering the various instances that come into
place. Commercial exploitation in the context of public debt related
litigation poses a cache of questions, issues aplenty are raised in pertinence
to the relationship between immunity as an exception for commercial
transactions on one hand and torts on the other hand.[1274] Another glaring
loophole comes into play in pertinence to the usage of the defense of
immunity against claims for violation of human rights by a foreign
government, considering the magnitude of ethical considerations it tends to
stir up.[1275] Another gray area that remains to be understood is as to
whether an individual can invoke immunity for himself, in a bid to come
across as distinct from the foreign state itself, or the instrumentalities of
330

such foreign state.

Absolute immunity as a rule has created enough room for question and legal
debate, most of which could have easily been done away with by deploying
the qualified immunity rule. Most acts of nationalized industries would then
have been deemed commercial, and outside the ambit of immunity, therefore
avoiding the need to even decide whether nationalized industries come
under the ambit of the state as an entity.
Absolute immunity also came into play in instances where the dispute
pertained to an interest of the foreign state. Since immunity as a concept also
found application in pertinence to property in which the foreign state has
interest, as a rule, questions of such cadre tend to arise even in such cases
where the foreign state is not party to the dispute per se. But, under the
principles of qualified immunity, there is no immunity for a foreign state if it
uses property for commercial purposes.[1276] In this respect, the qualified
immunity rule makes more sense than the absolute immunity rule, because it
is highly unjust if a court would halt proceedings between two private
individuals by asserting an interest in property devoid of evidence to
corroborate its interest. Contrarily, though, it would be ridiculous to make a
state prove its title before another states municipal courts, because that is
virtually undermining the former states sovereign capacity and forcing it to
submit to the jurisdictional powers of the municipal court of such other
state.
Non-Justiciability and Acts of State: Constituent elements of
Sovereign Immunity
In terms of a conceptual framework, sovereign immunity can be best
explained in the context of two aspects, namely, non-justiciability and acts
of state. The two facets to sovereign immunity essentially dabble with that
aspect of international state activity that are above the competence of the
domestic tribunal in its assertion of jurisdictional competence, and
therefore, cannot be confined within the jurisdictional control of any state.
Jurisdictional immunity essentially indicates a certain list of circumstances
in which a court is precluded from exercising jurisdictional rights it
otherwise can exercise. However, immunity from jurisdiction refers to
instances rooted to domestic law and its constitutional roots. Immunity from
jurisdiction and the notion of jurisdictional immunity are different
inherently. [1277] Immunity from the jurisdiction of the court refers to a
circumstance where a national court would have had the right to exercise
jurisdiction over the subject matter of a dispute, but, is not permitted to
exercise it in a particular case since one of the parties involved is a foreign
331

sovereign, state or government. It does not refer to an instance where there

occurs an exemption from the legal system of the territorial state involved.
Considering these facts, the question of sovereign immunity takes on
procedural overtones and is accorded the status of a preliminary issue.
[1278] In terms of procedural steps, it precedes questions raised upon the
act of state.[1279] The distinction is blurred in practical application,
though, leading to the possibility of arguments based on both principles.
Non-justiciable issues refer to those, over which the national court has no
competence to assert jurisdictional control. The crux lies in the fact that the
substantive aspect of the issue falls squarely outside the realm of judicial
proceedings before the national court, and therefore, does not allow it to
exercise jurisdiction. Non-justiciability may signify its presence in a
plethora of ways, starting from those which cannot properly be raised in the
courts of any state aside of those of the state that is directly concerned with
the issue. An example for this is the constitutional validity of the acts of
legislative nature of the impleaded state, except where the acts themselves
constitute a violation of international law.[1280] One state cannot
pronounce a decision upon the question of validity of the constitution of
another State.[1281] Another fact is that there are some issues which do not
raise questions that challenge national law, such as those pertaining to the
legal validity of treaties. In such instances, a national court has no
jurisdiction to declare the true interpretation of an international instrument
which has not been incorporated into its domestic legal system, and which
is quite unnecessary to interpret for the sake of determining the rights or
duties of a person under the concerned domestic law.[1282] The actions of
a gubernatorial nature, as undertaken by a foreign sovereign in exercise of
its powers over its own territory, are also non-justiciable by courts of states
outside of such foreign sovereign, especially if such exercise concerns its
own nationals. Furthermore, the actions of a state in pursuance of its own
foreign affairs are also outside the jurisdictional ambit of the courts of other
states.[1283]
The act of state doctrine essentially purports that the acts of a state carried
out within the sovereign limits of its own territorial expanse cannot be
challenged in the courts of other states, even if such act is found to be in
flagrant contradiction to international law. The doctrine has been known to
overlap with private international law, which has been depicted by
jurisprudence reliant upon private international law as being alternative
grounds for their decision. As a consequence, therefore, the doctrine and
private international law have been confused with one another.
Nevertheless, to gain perspective, it is necessary to understand the
332

distinction between the two. The act of state doctrine is clearly wider in
terms of its purport and ambit, since it covers acts carried out by a foreign
state within its own territory, which are contrary to its own legal provisions.
However, in a different sense of the term, acts of state are narrower than
private international law, since acts of state do not cover contractual
relations between private individuals. When an act of state argument comes
to fore, jurisdiction is not exercised. However, once the court feels that it
may very well go ahead with the exercise of jurisdiction given that the
legislation governing sovereign immunity permits it to hear the case it is
still possible for the argument to be raised before the court. At such points
of time, the rule is that the presence of such forms of legislation does not do
away with the doctrine of non-justiciability or act of state, and therefore, if
the court accepts that immunity does not apply, the scope for nonjusticiability is narrowed down by and large.[1284]
The act of state doctrine has been deemed a part of public international law;
however, the domain it belongs to is not free from debate and doubt, in
entirety. The reasons for the dissenting views are in the form of two distinct
situations. Primarily, where an individual is taken to court, or prosecuted in
the municipal courts of one state, for the acts performed in his capacity as a
servant or agent of another state. In such instances, the act of state doctrine
is ancillary to the rules of sovereign immunity, rooted in international law.
Therefore, every individual functioning a servant or agent of a foreign state,
is immune from any form of legal proceedings, as proceedings of such sort
virtually implead the state itself, indirectly, as the state would definitely be
morally and honour bound to back its individual, and indemnify him for
damages he may have to pay. There is also the likelihood of politics coming
into play, thereby displacing the issue from the ambit of the municipal courts
altogether. Having said this, however, it is necessary to note that immunity
cannot and does not exist in the event of war crimes, crimes against peace
and crimes against humanity.[1285]
Secondly, in instances where a state expropriates property that is found
within its territorial expanse, and then sells it to a private individual, and
such private individual is taken to court by the original owner in the courts
of another state, divergent opinions and issues come into play. States like
the US and the UK lean upon the act of state doctrine in such instances, as
opposed to civil law states such as France and Germany, which use private
international law to govern cases involving foreign nationalization decrees.
Waiver of Immunity
333

Immunity accorded to a state is virtually a privilege, stemming from the fact

that the state is freed from the possibility of being clamped down with
responsibility and liability, as a consequence of being made party to legal
proceedings. However, a state may choose to waive the accordance of
immunity, and thereby proceed to being subjected to the jurisdiction of the
court. Waivers can be both, explicit and implicit. Explicit waivers need to
be made by an authorized representative of the state, and does not
automatically mean waiver from execution.[1286] Implicit waiver requires
a little more care and attention. Generally, when a state submits to the
jurisdiction, either in pursuance of a prior written agreement, or after a
dispute comes into place. Jurisdiction is submitted to when a state institutes
proceedings, or intervenes, or takes a step towards participating in the
proceedings itself. Article 8 of the UN Convention on Jurisdictional
Immunities provides thus. Article 9 of the UN Convention on Jurisdictional
Immunities explains that when a state submits to proceedings, it is deemed
to have submitted to any counter-claim that may have arisen out of the same
legal relationship, or the factual matrix underlying the claim.
Sovereign Immunity and Human Rights
Human rights have evolved into one of the most important fields under
international law, especially considering the fact that the branch of study has
virtually put the individual on the map as another subject of international
law. In the interface between state or sovereign immunity rights and human
rights, the question as to whether immunity extends even to the cases of
human rights violation or not has oftentimes knocked the doors of courts.
The generally accepted notion is that immunity can be invoked to escape
jurisdiction in the context of human rights violations. However, there is a
pressing need for change.
The Canadian system indicates such practice. In Bouzari v. Iran,[1287] in
putting things in perspective in the context of the Canadian State Immunity
Act, 1982, the Superior Court of Justice of Ontario, Canada, ruled that there
existed an international customary norm, which allowed immunity for acts
of torture committed outside the ambit of the forum state, and that
irrespective of the purpose of the states activities, the exercise of police
and law enforcement for security fell squarely within the ambit of the
exercise of governmental authority and sovereign power.
As far as the United Kingdom is concerned, in Al-Adsani v. The
Government of Kuwait,[1288] it was held that the legislation on State
Immunity stipulated that states would enjoy immunity in situations apart
from those specifically listed exceptions. Since the explicit enumeration
334

excluded implicit exceptions, there would be no accordance of privileges in

the wake of a violation of jus cogens, which includes torture. The argument
that immunity implied immunity for sovereign acts in keeping with
international law, therefore no immunity should subsist for acts of torture,
was rejected. Subsequently, in Holland v. Lampen-Wolfe,[1289] it was
ruled that the recognition of sovereign immunity did not essentially involve
a violation of due process as found under the ambit of article 6 of the
European Convention on Human Rights. Immunity derives from customary
law, and article 6 is derived from a treaty that has been signed by the United
Kingdom of its volition. Therefore, it was held that the United Kingdom
could not exercise jurisdiction over the United States, without the consent of
the United States, in pursuance of its own act of acceding to a treaty.
Subsequently, in the decision in Jones v. Saudi Arabia,[1290] the House of
Lords dealt with an issue wherein claims were based on the allegation that
individuals were tortured while being kept in official custody in Saudi
Arabia. The House of Lords went on to hold that as under Part I of the
British State Immunity Act, 1978, which reflected norms in international
law, a foreign state was accorded immunity unless it fell within the ambit of
one of the exceptions provided for under the statute itself. Therefore, since
there was no exception created for the offence of torture taking place
abroad, there could be no ground for holding the inapplicability of
immunity. The court also asserted that merely because torture was
prohibited by a norm of jus cogens value under international law, it was not
sufficient to disrobe an official off his immunity.
The European Court of Human Rights took a stand in the same direction
while pronouncing its judgment in Al-Adsani v. UK,[1291] where it held
that the accordance of sovereign immunity to a state in the course of civil
proceedings essentially pursued an aim of keeping with international law, in
a bid to promote good relations and amiable arrangements between states by
fostering respect for state sovereignty and the status of equality of all states.
The court also asserted that the European Convention on Human Rights
should be interpreted in keeping with the rules of international law,
including those pertaining to the accordance of state immunity. Since the
court found no firm basis for concluding, as a matter of international law,
that a state does not enjoy immunity from civil suits in the courts of another
state where acts of torture are alleged, immunity was still held applicable in
such instances.
The American stance also follows on the same lines. In Saudi Arabia v.
Nelson,[1292] it was held that the only basis of jurisdiction over a foreign
335

state that the US had was the Foreign Sovereign Immunities Act, 1976.
Unless and until the issue fell within the ambit of one of the exceptions, the
plea of immunity would not succeed. The case involved an allegation of
wrongful arrest, imprisonment and torture by the Saudi government of
Nelson, where the court held that although such an act would be tantamount
to a case of abuse of power by the government of its police, a foreign states
exercise of police power has been construed as peculiarly sovereign for the
purposes of the restrictive theory. Later, in 1996, the US Foreign Sovereign
Immunities Act, 1976 was amended by the passage of the Antiterrorism and
Effective Death Penalty Act, by the creation of an exception to immunity in
pertinence to states, as designated by the Department of State as terrorist
states, which committed a terrorist act or an act which would result in the
death of or injury of a US Citizen. The amendment was given retroactive
operation.[1293] Later, in Simpson v. Libya,[1294] the US Court of
Appeals held that the exception to immunity in pertinence to hostages,
would apply where the state in question was designated as a sponsor of
terrorism, where it was given a reasonable opportunity to settle the claim,
and where either the victim or the claimant was a US citizen.
Practice of states indicates one of the most vexing issues in the context of
state immunity. The normative hierarchy theory indicates that because state
immunity is not jus cogens, it ranks below other norms of such character in
the hierarchy of international law. Therefore, where norms of a jus cogens
nature come into play with a case of state immunity, the former should
logically prevail. In keeping with the principle of normative hierarchy,
which flows from the nature of the sources of international law, it is
necessary that all rules subservient to jus cogens take a backseat. State
immunity, as it exists today, is far from being an absolute right. The practice
of according immunity to other states emanates from customary international
law, but the protection of human rights by disallowing immunity to clothe a
violator is conspicuous by its absence. If offences like torture or other forms
of human rights violations are prohibited under international law by norms
of jus cogens, it would reduce the very notion of jus cogens to a travesty of
itself. Some scholars have gone on to assert that state immunity, as a
doctrine, is presently poised on the cusp of a phase of doctrinal evolution,
which would create a system of further restrictions on the enjoyment of
immunity in keeping with the demands of human rights.[1295] Furthermore,
it is hardly in the fitness of things to allow a procedural right to trounce
substantive rights which are violated as a consequence of misconduct
clothed by the procedural right.

336

Diplomatic Immunity
Diplomatic immunity refers to the legal immunity as a consequence of
policy held between governments, in a bid to ensure that diplomats, who are
vested with the right to represent their respective states on foreign terrain,
are accorded safety of passage and are immune from lawsuits and
prosecution under the laws of the host country. However, a diplomat may be
expelled from the host country. Conceptually, the principles of diplomatic
immunity date back to old time customary practice, but have been given a
treaty-based personification in the 1961 Vienna Convention on Diplomatic
Relations. Diplomatic immunity has helped preserve governmental relations
even during armed conflict, since the privileges and immunities accorded to
the diplomats of another state cannot be compromised upon, irrespective of
the circumstances prevailing in the host state. Initially, the privileges and
immunities were accorded on a bilateral basis, of an ad hoc nature. This
created ample dispute, misunderstanding and conflict. Weaker states began
to feel pressurized, other states were oftentimes found squarely in the midst
of a quandary when it came to judging who the wrongdoing party was.
Subsequently, several international agreements came into play, of which the
1961 Vienna Convention on Diplomatic Relations occupied an important
spot. These agreements helped define the law once and for all, for having
codified the rules it laid down the standards of practice to be adopted by all
states.
Since the inception of states as entities and their existence in correlation to
one another, customs of different sorts have always governed their relations,
and the conduct of their ambassadors, representatives and diplomats.[1296]
As international law and justice evolved, several wars waged at different
points of time were deemed unlawful rebellions by the opposing states. In
the light of such instances, the servants of the criminal sovereign were
deemed accomplices of those waging war, and were mistreated in pursuit of
penalizing them for the conduct of their state. Sometimes, when it appeared
as though an envoy carried demands or messages that were inconsiderable,
they were killed as a declaration of war. History is rife with records of such
persecutions.[1297] Nevertheless, there were a couple of civilizations that
followed traditions of protecting diplomats. In Islamic ideology, a
messenger is not to be harmed, even if he comes from an arch enemy, or
carries a highly unacceptable message. The Mongol empire also followed a
policy that stringently insisted upon the rights of diplomats, asserting a
policy pursuing vengeance in the event that the rights of diplomats be
violated.
337

The beginnings of a concerted move towards according diplomatic

immunity dates back to the British Parliaments act in 1709, after Count
Andrey Matveyev, a Russian resident in London, was subjected by the
British Bailiff to verbal and physical abuse, which accorded immunity to
foreign ambassadors. Following suit, much of Western Europe began
understanding the importance of protection from prosecution in the
professional pursuit of a diplomat. The intermittent spurts of war disrupted
the implementation of diplomatic immunity, but the Second World War
remained an exception, being that diplomatic immunity was upheld, and
embassies of belligerents were evacuated through neutral states. At the
inception, embassies were not permanent establishments. All there existed
were a stream of visits by representatives of the sovereign itself, either
high-ranking officials or relatives of the sovereign, or sometimes, the
sovereign himself. In the 19 Century, the Congress of Vienna sought to
reassert the rights of diplomats, thereby creating a system which has then
come to be deemed as the European Model which has formed the basis of
many current models world over.
Originally, diplomatic relations were forged with ambassadors, and other
allied staff.[1298] However, with the increase in interactions between
states on the pretext of trade and commerce, there was need for more
diplomatic machinery in the form of the office of the consul and allied staff.
With burgeoning relations, states found it necessary to send special missions
to other states for specific purposes, sometimes headed by the head of the
state or the government itself. [1299]With time, technology helped bridge
gaps and dispense with the need for personal presence for every need, but
nevertheless, diplomats and staff of similar cadre have been retained in a
bid to ensure permanent presence on foreign terrain. Their presence,
however, in terms of importance, has not lessened by any degree.
Till date, diplomacy has stayed as a method of communication between
different parties, including within its fold myriads of forms of practices that
have manifested as a consequence of several centuries of state practice. In
many ways, Diplomatic immunity has evolved from the principles of
sovereign immunity, independence and equality of states and as a
consequence of preserving the international system as an anarchical
arrangement. States use the services of their diplomats in a bid to negotiate
and consult amongst themselves. The diplomats represent the state, function
on behalf of their state, and in essence, personify the state in another state,
or in relation to another state. Therefore, it is only fitting that they be
permitted to benefit from the principles of state sovereignty, which is not
only a matter of law and rights ensuing therein, but also a matter of practical
th

338

feasibility and convenience.

Diplomatic immunity with all the rules and related principles has been
observed by states in general, in pursuit of their attempt to retain and
preserve their rules. A state may be subjected to pressure from different
quarters in its internal realm to confine the expanse of immunity accorded to
foreign diplomats. However, a state is wont to resist the pressure, failing
which there would be a precedent that could cause a similar effect for its
own diplomats abroad. Thus, in a nutshell, it would be right to deem each
state, as both, a sending state and a receiving state. This reciprocity enables
an easier operation of the rules of diplomatic immunity, as opposed to other
considerations. The rules of diplomatic immunity are essential for the
maintenance of relations between states and are accepted throughout the
world by nations of all creeds, cultures and political complexions.[1300]
Diplomatic relations, in their true form and content as they exist today, and
as they have evolved in all the centuries leading up to the present, has been
an undoubtedly well-accepted field under international law; perhaps out of
the fact that the field is in itself of such importance to all states, given that
each state has its own interest in preserving good relations with other states,
or perhaps out of the fact that in the given day and age that isolated existence
of a state is virtually ruled out, or even perhaps out of the fact that practice
in the field is considerably uniform. The rules of diplomatic law, in short,
constitute a self-contained regime, which on the one hand, lays down the
receiving states obligations regarding the facilities, privileges and
immunities to be accorded to diplomatic missions and, on the other, foresees
their possible abuse by members of the mission and specifies the means at
the disposal of the receiving state to counter any such abuse.[1301]
The Legal Regime governing Diplomatic
Immunity
In its present form, the legal framework for Diplomatic Immunity is couched
in the 1961 Vienna Convention on Diplomatic Relations.[1302] The
convention has found universal signature and accession, particularly
because of the extent of importance the subject matter itself enjoys. The
convention itself, in part, codifies customary international law, and for the
rest, enunciates norms that have been appended thereto as found prudent by
the makers of the convention itself. By codifying customary law, the
convention stands to function as evidence for these norms, which may easily
be enforced against those states that arent privy to the Convention by
signature, simply because such norms mirror the position of law as it exists
under the ambit of customary law. The treaty explains the functional value
339

attached to the operation of a regime comprising diplomatic privileges and

immunities by stressing upon its significance in the context of international
relations.[1303] In addition, it also explains in due detail, the character of
the diplomatic missions and related entities as they represent their state.
[1304] Irrespective of the situation prevailing in the state in questionwhether a state of peace or armed conflict, the convention applies to every
state in its entirety.[1305]
Diplomatic ties are fundamentally effectuated in pursuit of mutual consent
and bilateral relations between the states involved.[1306] Consequently,
therefore, states may find themselves in a position where they seek to break
off these ties unilaterally, perhaps in a bid to depict its displeasure in the
context of an illegal or unfriendly act as carried out by the other state.
Article 4 of the Convention mandates that the receiving state needs to be
involved in terms of consent, for the selection of the head of the diplomatic
mission, but not necessarily so in the context of the selection of those
subordinate to the head. If a state so wishes to decline or refuse to accord
consent, no reasons need to be given. A state cannot be compelled to enter
into diplomatic relations by the law if it does not wish to. Article 9 of the
Convention indicates that the receiving state may declare as many diplomats
as it may so wish, from among the pool constituting the mission, persona
non grata, without buttressing its surmise with an explanation, and thereby
obtain removal of the person.[1307]
Though consent itself forms the basis of diplomatic relations, the tenets
underlying diplomatic relations are not independent of other normative
principles under international law. The resolutions of international
organizations, and sometimes and the obligations on part of the international
community in keeping with the conditions prevailing in the state involved
may modify the expected code of conduct towards the state involved. A
classic example is the case of sanctions being imposed by the Security
Council upon states that do not comply with their duties under international
law.[1308]
A diplomatic mission essentially represents the state that sends the mission,
and protects the interests of the nationals of the sending state. In addition,
the mission is instrumental in promoting information and friendly relations
between the sending state and the state to which it is sent. These functions
are enunciated under Article 3 of the Convention.
The sending State, as explained under Article 4, must ascertain that the
agreement of the receiving state has been accorded for the person it
proposes to accredit as the head of the mission to the State involved. Article
340

5 explains that the sending State may, after it has given due notification to
the receiving States concerned, accredit a head of mission or assign any
member of the diplomatic staff, as the case may be, to more than one State,
unless there is express objection by any of the receiving States. Clause 3 of
the same provision explains that a head of mission or any other member of
the diplomatic staff of the mission may act as a representative of the sending
State to any international organization. Two or more States may accredit the
same person as head of mission to another State, unless objection is offered
by the receiving State, as according to article 6. The sending state is free to
appoint the members of the staff of the mission, except the military, naval or
air attaches who maybe appointed after their names have been approved of
by the receiving state as under Article 7. Given that a state is represented on
the territory of another state by its diplomatic mission, it is only practical
and fitting that the mission comprises of individuals who are nationals of the
sending state, as explained by Article 8. Further, the members of the
diplomatic staff of the mission may not be appointed from amongst those
bearing nationality of the state receiving them, except, of course, with the
express consent of the receiving state. Such consent may be withdrawn at
anytime.[1309] In addition, article 41(1) explains that those enjoying
privileges and immunities under the ambit of diplomatic immunity also have
a duty not to interfere in the internal affairs and workings of the receiving
state.
The diplomatic mission and its head are deemed to have taken up functions
in the receiving state once the credentials are presented, in keeping with
article 13. The head of the mission presents the Letters de Creance, which
imply letters of credence, explaining his appointment to the receiving state
at a formal ceremony. There are essentially three classes of heads of
missions. Primarily, the ambassadors or nuncios accredited to Heads of
State and other heads of mission of equivalent rank; secondly, envoys,
ministers and internuncios accredited to Heads of the State; and thirdly,
charges daffaires accredited to the Ministers of Foreign Affairs. The
classes to which the heads of each mission are to be assigned are left to the
agreements between the states, in keeping with Article 15. There are plenty
of ministers and envoys who are sent on a temporary basis, for a specific
assignment or project. They were originally deemed either extraordinary or
plenipotentiary personnel, each having full powers to transact business on
behalf of the head of the State. However, the terminology is used for
temporary and resident envoys presently. Other categories of envoys include
those on ad hoc missions, each carrying full powers. They are vested with
assignments that explain the extent of their authority in the course of
341

negotiations with the receiving state.

Article 16 dictates that heads of missions take precedence in their
respective classes chronologically based on the date and time of taking up
their functions as under Article 13. However, any alterations made in the
credentials of a head of mission not involving any change of class will not
affect his precedence.[1310] The precedence of the members of the
diplomatic mission will be notified by the head of the mission to the
Ministry of Foreign Affairs or such other ministry as agreed upon by the
parties, as dictated by Article 17. Uniformity in procedure in respect of
each class shall be maintained as directed by Article 18. Article 19
provides that if the post of head of the mission is vacant, or if the head of the
mission is unable to perform his functions a charg daffaires ad interim
shall act provisionally as head of the mission. Clause 2 of the same
provision explains that in cases where no member of the diplomatic staff of
the mission is present in the receiving State, a member of the administrative
and technical staff may, with the consent of the receiving State, be
designated by the sending State to be in charge of the current administrative
affairs of the mission. Article 20 allows the mission and its head the right to
use the flag and emblem of the sending state on the premises of the mission.
This right extends even to the residence of the head of the mission and to the
means of transport used by such head of the mission.
Rights, Privileges and Immunities
The conduct of diplomatic relations of states is entirely in keeping with the
mandate accorded under specific permission, consent and authorization of
the receiving state. As a consequence of the fact that a state is represented
by its diplomatic agents on foreign territory, these individuals need to be
protected from any ramifications that may emanate from differences between
the states involved. Therefore, in the guise of assuring diplomats protection,
it is essential that they be clothed with certain rights, duties and privileges.
The immunities so accorded are essentially related to the dual aspects of
diplomatic representation, which are the sovereign immunity attaches to
official acts of foreign states and the elements of functional privileges and
immunities of the diplomatic staff and premises.[1311]
In the words of the International Law Commissions, three basic theories
underlie the accordance of rights, duties and privileges to the diplomats.
The extraterritoriality theory purports that the premises of the mission
represent an extension of the territory of the sending state. The theory is no
longer put to use, having been discarded by most states.[1312] The second
theory, namely, the representative character theory, deems the diplomatic
342

mission as a personification of the sending State and the diplomat as the

representative of the foreign sovereign, as a result of which privileges exist.
The third theory is the functional necessity theory, which justifies the
privilege and immunities as being necessary for the performance of the
diplomatic missions functions. The Vienna Convention on Diplomatic
Relations is an augmentation of all the three theories, of which the former
two are couched within the ambit of customary international law. The
functional necessity theory comes into play in the event of ambiguity or lack
of legal direction under the extant customary norms.[1313]
Immunities accorded to the Mission:
Inviolability
The Vienna Convention, under Article 22, seeks to protect and facilitate the
operations of normal diplomatic activities, by declaring that the premises of
the mission are inviolable, and, that agents of the receiving state are not
supposed to enter them without consent from the mission itself. The
inviolability of the diplomatic mission is a part of customary international
law, and is an absolute rule in its own right.[1314] It cannot be violated
even for the sake of serving writs through mail. The Sun Yat Sen incident in
1896 is a classic example, where a habeas corpus was refused to be issued
by the Court to a Chinese refugee held in the Chinese legation in London,
completely against his will.[1315] While this is the generic rule in
circumstances of avoidable nature, the inviolability quotient during times of
emergency and urgent circumstances seems conspicuous by its absence as
under Article 22. Nothing in the article goes to preclude the onslaught of
personnel on the missions premises, to combat a state of emergency, force
majeure, or even an accident of sorts, in a bid to protect the inmates from
danger or harm. The most one may make, is to deem these interventions as
acts undertaken in the face of emergency, considering the imminent threat to
life and property. In Peru, when commandos entered the Japanese embassy
which was under siege under the control of rebels during the period from
December 17, 1966 to April 23, 1997, to rescue hostages, it was considered
acceptable, considering the situation that prevailed.[1316] The receiving
state is bound to protect the mission premises from any act of intrusion or
damage that would end up damaging or impair its dignity.[1317] The
fulcrum upon which diplomatic relations functions, is the need to protect
foreign diplomats on ones own territory, which, in turn, is couched in the
states own interest and position in terms of its international relations and
affairs. A state cannot undermine the importance of diplomatic personnel,
who are fundamental to the states conduct and position in international
343

affairs.[1318] In the decision of Boos v. Barry,[1319] the US Supreme

Court upheld a District of Columbia statute which declared it unlawful to
congregate within 500 feet of diplomatic premises, and further an unlawful
act to refuse to disperse despite having been ordered to do so by the police.
The Court asserted that in determining the outcome, the quantum of
prohibited disturbance would be examined to see if it disrupts the
embassys activities. The US Embassy incident in Tehran, in 1979
witnessed an exposition of the basic tenets of inviolability of the diplomatic
mission. Several demonstrators stormed the US Embassy in Tehran, Iran,
and seized archives and documents while holding as many as fifty
diplomatic and consular staff hostage. The ICJ in the following year, in the
official Iranian Hostages case,[1320] asserted that Iran was placed under
the most categorical obligations as a receiving state, to take appropriate
steps to ensure the protection of the United States Embassy, and Consulates,
their staff, archives and means of communication and the free movement of
the Staff. The obligations explained subsist under the ambit of general
international law,[1321] which automatically made Irans behaviour
profane. The court emphasized upon the seriousness of Irans behaviour and
the conflict between its conduct and the obligations it was bound by under
international law. Similarly, in Congo v. Uganda,[1322] the ICJ denounced
the attacks on the Ugandan Embassy in Kinshasa, Congo, where attacks on
persons on the missions premises were perpetrated by the by Congolese
armed forces. The attacks were deemed to be a flagrant violation of Article
22 of the Vienna Convention on Diplomatic Relations. In deciding the case,
the ICJ asserted that the Convention not only prohibited any form of
infringements of the inviolability of the mission by the receiving state itself
but also puts the receiving state under an obligation to prevent others, such
as armed militia groups, from doing so.
In a similar incident in 1965, the American Embassy in Moscow faced
attack by students, following which the Soviet Union expressed regret over
the incident. In the same strain, it promised to embark upon stricter
measures of according protection, and also agreed to compensate the loss.
[1323]
When forces of Iraqi origin, after the Kuwaiti annexation, entered into the
premises of foreign embassies of France and a couple of other states, took
away diplomats and nationals present on the premises, the Security Council
denounced the actions as constituting flagrant violations of international
obligations. Iraq was declared to be responsible for the use of violence
against diplomatic missions and their personnel.[1324]
344

The Convention however, does not mention the right to enter in the event of
abuse of the premises by the embassy and its staff. At the most, Article
41(3) of the Convention explains that the premises of the mission ought not
to be used in any manner antagonistic with the functions of the mission as
laid down within the ambit of the convention, or, with any other rule of
international law, or by any generic agreements in force between the sending
and receiving state. The provision came into play in the context of a case
between Iraq and Pakistan in 1973. The Iraqi Ambassador was called on by
the Ministry of Foreign Affairs of Pakistan, on the suspicion that arms were
smuggled into Pakistan. The ambassador was told that arms were being
brought into Pakistan under those bearing diplomatic immunity, and there
was sufficient evidence to assert that they were stored in the Iraqi Embassy
in Pakistan. When the ambassador refused to grant permission for a search
to be conducted, the premises were immediately subjected to a raid at the
behest of the Pakistani police, in the ambassadors presence. Subsequently,
plenty of arms stored in crates were recovered. In a strong protest from
Pakistan to the Iraqi Government, Pakistan declared the Iraqi Ambassador
and an attach as persona non grata, and then recalled their own
ambassador. Article 41(3) was flagrantly violated, and in pursuit of
investigating and curbing such activity, entry was forced onto the premises
of the mission. An ex post facto justification would bode well in such
cases, considering the nature of the use of the embassys premises.
The United Kingdom faced a similar situation with Libya in 1984, following
the Libyan Peoples Bureau Incident.[1325] Firing from the Libyan
Bureau in London ended up claiming the life of a policeman, and injured
eleven demonstrators who were protesting Qaddafis government. The
Bureau was evacuated, searched and guns were seized. Forensic evidence
was found aplenty. The issue in dispute was as to whether the search itself
was permissible, in pertinence to Article 45(a), which states that after a
break in diplomatic ties, the receiving state must necessarily respect and
protect the premises of the mission. The United Kingdom indicated that
Article 45 (a) did not imply that the premises were inviolable even after
diplomatic ties were snapped. The view seems to have the benefit of
accuracy, as the inviolability norm as under Article 22 differs greatly from
respect and protection as under Article 45(a). The receiving state is, no
doubt, mandated under a duty to respect and protect the premises of the
mission, its property and archives and documents, even if there arises an
armed conflict, as explained under Article 45(1).
When the diplomatic premises are abandoned or closed down, the situation
sees a different turn of events. In London, the Cambodian Embassy, whose
345

personnel closed the building as a consequence of the Pol Pot takeover of

Cambodia in 1975. The personnel handed over their keys to the Foreign
Office,[1326] following which the UK withdrew recognition for the
Cambodian government in 1979, and did not have any dealings with the
government thereafter. Following the evacuation, squatters made a move
into the premises. By a legislation, namely, the Diplomatic and Consular
Premises Act, 1987, specifically under section 2, the Secretary of State was
given the power to require that the title to such land be vested in his hands,
where such land has been lying empty, without diplomatic occupants, and
could cause damage to pedestrians or neighbouring buildings on account of
neglect, in the event that he is satisfied to pursue such a course of action in
keeping with international law. Consequently, Section 3 of the same statute
allowed the secretary to sell the premises, deduct expenses and transfer the
residuary interest to any person divested of his interest. Using the
provisions, the Secretary of State vested the land in himself, which led to a
case where the squatters challenged his move, in R v. Secretary of State for
Foreign and Commonwealth Affairs, ex parte Samuel.[1327] The
conduct of the Secretary of State was upheld as valid, in light of the duty
imposed by Article 45 of the Vienna Convention.
Allied with the issue of inviolability of premises of the diplomatic mission,
is the question as to whether diplomatic asylum rights exist within the ambit
of international law, and as to whether refugees are to be returned to the
authorities of the receiving state, in the absence of any legal rule to the
contrary. The issue was discussed in the Asylum Case,[1328] where it was
explained that a decision to grant asylum involved derogation from the
sovereignty of the receiving state, and constitutes an intervention in issues
exclusively within the competence of the state concerned. The derogation
would not find any recognition unless the legal basis is established in each
case. If an agreement or a treaty governs the grant of asylum, the question as
to the competence of both states would arise. The diplomatic officials of the
sending state are free to determine, provisionally, whether a refugee
essentially fulfils the condition for asylum as under the treaty. But, the
determination does not bind the receiving state, as international law per se
does not recognize unilateral and definitive qualification by the state that
grants asylum.
Archives and Documents: Privilege of
Inviolability
Article 24 of the Vienna Convention mentions the inviolability of the
archives and documents of the mission, at any time, wherever they may be.
The archives and documents of the diplomatic mission are not subject to any
346

form of legal process. Although such elaboration is offered on the tenets

pertaining to archives and documentation, there is no definition for the terms
themselves. The 1963 Convention on Consular Relations functions as a
statute in pari materia, and defines consular archives as including all the
papers, documents, correspondence, books, films, tapes and registers of the
consular post, along with the cache of ciphers, codes, card-indices and
articles of furniture put to use with the intention for their protection or safekeeping.
Freedom of Communication and Inviolability of the
Diplomatic Bag
The state receiving the diplomatic mission is bound by an obligation under
Article 27(1) to permit and protect free communication on the part of the
mission for all official purposes. Official correspondence of the diplomatic
mission is entirely inviolable. At all times, the diplomatic bag shall not be
opened or detained, as explained under Article 27(3). The packages that go
into constituting the diplomatic bag needs to compulsorily bear visible
external marks of their character and may contain only diplomatic
documents or articles that are intended for official use, as explained under
Article 27 (4). While this is indeed clear, there is ample doubt as to whether
the receiving state can open, or demand the right to open or search the
diplomatic bag in the event of any doubt as to its contents.[1329] In
practice, the right existed prior to 1961,[1330] but after 1984, a minister in
the deposed Nigerian Government called Mr. Dikko, was kidnapped in
London and was found drugged in a crate at Skanstead Airport.[1331] He
was to be airlifted to Nigeria, to face criminal charges there. The crate so
used for transportation did not bear any visible external mark as is required
under Article 27(4), although it was labeled diplomatic baggage. Because
of the stench and odious odours emanating from the crate, it was opened by
the customs officials. While the case itself did not violate Article 27, the
question was unanswered as to whether a state and its officials may open up
or demand to search the diplomatic bag, in a bid to quell doubts if any. The
ambiguity was settled by the International Law Commission in 1989, which
adopted the Draft Articles on the Status of the Diplomatic Courier and the
Diplomatic Bag not Accompanied by Diplomatic Courier. Article 28(2) of
the Draft Articles indicates that the receiving state may request that the bag
be opened in the presence of the representative of the sending state, if the
receiving State has reasonable and serious doubts as to the contents of the
bag itself. If the request is not accorded permission, the bag can be returned
to its place of origin.[1332]
Akin to the Diplomatic Bag and its contents, all diplomatic couriers are also
347

protected, in the performance of their official functions. They enjoy personal

inviolability and are not liable to any form of arrest or detention by the
receiving State as under Article 27 (5). Aside of this, the courier does not
enjoy personal immunity from local jurisdiction of the receiving state, and
his personal bag is not exempted from search.[1333] The courier is,
however, under an obligation to carry a couriers passport. Both sets of
obligations, i.e., those pertaining to the diplomatic bag and diplomatic
couriers are binding on third states. States are thus under an obligation to
accord similar freedom and protection to the official communication and
correspondence, as is provided by the receiving State. Article 40(3) of the
Vienna Convention, 1961 ensures that diplomatic couriers and bags in
transit shall be accorded the same degree of inviolability and protection as
the receiving State is bound to accord.
Personal Inviolability of Diplomatic
Agents
The person of a diplomat is essentially inviolable, as explained under
Article 29 of the Vienna Convention. The term person is as defined under
Article 1(e) of the convention as being the head of the mission or a member
of the diplomatic staff of the mission.[1334] The principle has been the very
basis of diplomatic law, and is by far, the oldest established rule of
diplomatic law.[1335] He is not liable to any form of arrest or detention,
and the receiving State shall treat him with dignity, and due respect, and take
all the appropriate steps to prevent any attack on his person, freedom or
dignity.
The use of violence against diplomatic and consular missions has been
condemned under international law.[1336] States are under an obligation to
ensure the protection of the diplomats of other states on the basis of mutual
interests and reciprocity.[1337] The murder of nine diplomats of Iranian
origin in Afghanistan was denounced by the Security Council as being
antagonistic to international law.[1338] The receiving state is under a duty
to protect the diplomatic agent, and prevent actions being directed against
him, and take necessary steps to ensure his personal inviolability based on
the circumstances and facts in each situation. However, these steps
spoken of do not extend to any conduct contrary to the law. In 1970, in
Guatemala, the German Ambassador to Guatemala was kidnapped. The
government of Guatemala did not succeed in submitting to the demands of
the kidnappers, which led to the murder of the ambassador. Germany
accused Guatemala of failing to protect their ambassador, but the contention
was repelled by the Guatemalan government by asserting that the obligation
to protest does not warrant the surrender to illegal demands.[1339]
348

With such events as kidnapping of diplomats in different parts of the world,

the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, Including Diplomatic Agents was adopted
in 1973. The convention came into play to quell the number of incidents
involving the perpetration of crimes against diplomats and officials part of
the diplomatic mission. The convention stipulates that state parties must
make any attack upon diplomatic personnel a crime under internal law,
along with appropriate penalties, while taking such measures as necessary
to ensure that they establish jurisdiction over such crimes. The convention
follows the aut dedere, aut puniere principle, dictating that states are
obligated to either extradite or prosecute the offenders.[1340] However,
though the convention was installed in place, not much was quelled where
kidnapping and holding diplomats hostage was concerned. The pocket of
time between 1979 and 1980 witnessed a terrible violation of law in the
form of the Iranian act of holding of US diplomats as hostages in Iran, by
storming the American embassy in Tehran. The incident was denounced by
the ICJ, which held the inaction on part of the Iranian government in
preventing, and subsequently remedying the situation a flagrant violation of
Article 29 of the Vienna Convention on Diplomatic Relations, 1961.[1341]
Even as recently as 2005, in Congo v. Uganda,[1342] the maltreatment of
people within the Embassy of Uganda by forces of Congolese origin was
deemed a violation of Article 29, to the extent that such people were
diplomats. While at it, the court also held the mistreatment of Ugandan
diplomats at the airport as breaching article 29.
The inviolability of person of a diplomat differs from the inviolability of the
premises of the mission, since there is no provision against the applicability
of inviolability to emergency situations. Therefore, where it is found that a
diplomat, through his conduct, constitutes a threat to peace and orderliness,
he may be detained in the interests of the State. In exceptional instances, it is
not impossible for a diplomat to be arrested or detained based on selfdefense or in the interests of protecting human life.[1343] In the event that a
diplomat is found misusing or abusing the privileges and immunities
accorded to him, it is left to the receiving state to declare him a persona
non grata.
Allied with this right is the inviolability of the residence and property of the
diplomat, as explained under Article 30 of the Vienna Convention on
Diplomatic Relations, 1961. Clause 1 states that the private residence of a
diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission. Clause 2 explains that the diplomats papers,
correspondence and property shall also enjoy the same degree of
349

inviolability. The inviolability principle applies even to temporary

residences of the diplomatic agent or official. However, in pertinence to
property, there is no application of inviolability in the event where there is
an exception to his immunity from civil jurisdiction. For criminal
jurisdiction, diplomatic agents enjoy complete immunity from the legal
system of the receiving state, but not from the sending state.[1344] In the
wake of these immunities being granted to the diplomat, the only remedy
afforded to have been committed by a diplomat is to declare him persona
non grata as under Article 9 of the Vienna Convention on Diplomatic
Relations, 1961. Diplomats also enjoy immunity from civil and
administrative jurisdiction as under Article 31(1), in which they are
serving. There are three exceptions to the rule, being, primarily, where the
action pertains to private immovable property situated within the host state
unless it is held for mission purposes as under Article 31(1)(a); secondly, in
relation to litigation pertaining to succession where the diplomat is involved
in private capacity as under Article 31(1)(b); and thirdly, in cases where an
unofficial professional or commercial activity is engaged in by the agent, as
under Article 31(1)(c).[1345] The last exception, it must be noted, does not
include ordinary contracts incidental to life in the receiving state, in the
nature of domestic services, purchases for domestic needs or medical bills.
[1346] A diplomat is not obliged to function as a witness, to give evidence
as under Article 31(2). Further, no steps towards execution may be
embarked upon the diplomat in capacity as a witness as under Article 31(3),
except in the cases involving the three exceptions explained above, and only
if the measures may be taken without antagonizing the rules of inviolability
of his person or his residence. Diplomatic personnel are also exempted
from the application of social security provisions in force in the receiving
state as per Article 33. The exemption from taxes of all kinds, excepting
indirect taxes is provided for under Article 34, while personal and public
services are exempted under Article 35, custom duties and inspection under
Article 36. The same article also interjects that the diplomats personal
luggage and baggage are exempted from inspections unless there are
grounds sufficient to presume that it contains things outside the ambit of the
exemptions, and such inspection can only occur in the presence of the
diplomat, or his representative, as under clause 2.
The privileges and immunities as mentioned under articles 29 to 36 are not
restricted to the diplomatic agent alone, but also extend to the members of
his family, constituting his household, as long as they are not nationals of the
receiving state.[1347] Similarly, members of the administrative and
technical staff and their respective households enjoy the immunities under
350

articles 29 to 35, as long as they are not nationals of the receiving state. The
exception, however, is that the immunities as under article 31(1) do not
extend beyond the acts that are performed in the course of their duties.
However, the members of the service staff, as long as they are not nationals
or permanent residents of the receiving state, enjoy immunity in pertinence
to acts performed by them in the course of their official duties.[1348] The
immunities begin to exist the moment a person enters into the territory of the
receiving state and takes up his post. If the individual is already on the
territory, the moment he receives official notification of the posting
accorded to him, the immunities begin to run. Both rules are explained under
Article 39. Immunity does not exist when the individual is neither in the
receiving nor in the process of transit between the sending state and the
receiving state.[1349] Article 39 indicates that immunities cease the
moment the person leaves the receiving state, and upon the expiry of the
period during which he is required to leave the state. Clause 2 of the same
article indicates that immunity shall continue in pertinence to acts performed
by the diplomat, when he was in power in the mission, and were performed
in the course of his exercise of functions as a member of the mission.
Naturally, for all acts performed outside the ambit of his official set of
functions, immunity does not exist.[1350]
If a diplomat passes through the territory of a third state, or is on the
territory of a third state which has accorded a visa, if such visa was indeed
a necessity, in the course of either going to take his post up or to return to the
sending state, the third State is under an obligation to clothe him with
inviolability and immunity, as is required to safeguard his transit and return.
This is also applicable to the members of his family and household that
enjoy these immunities and privileges, as explained under Article 40 (1).
Clause (2) of the same article indicates that in case of administrative,
technical or service staff and members of their families, the privilege
extends to nothing more than passage. Therefore, the third stage is only
under an obligation to see to it that it does nothing to hinder their passage.
Clause (3) goes on to assert that all official correspondence, the diplomatic
bag, the diplomatic courier in transit, shall enjoy inviolability and
protection from such third state as the receiving state is supposed to grant.
In R v. Pentonville Prison Governor, ex parte Teja,[1351] the Indian
government had sought the extradition of a person who was accused of
embezzlement, after which he left India, went to Costa Rica and then to
Europe on behalf of the Costa Rican government. He bore a diplomatic
passport along with a letter of credence which stated that he was soon to be
accredited as an economic counselor for the Embassy of Costa Rica in
351

Switzerland. In Britain, where he made a brief visit, he was arrested on an

extradition warrant on behalf of the Indian Government. His contention that
he would be accorded immunity by virtue of being one to gain the status of
diplomatic personnel was rejected, because there was neither an embassy
for Costa Rica in Switzerland, nor any evidence that his self-proclaimed
accreditation was accorded acceptance by Switzerland. In consequence, he
submitted that he was already an economic counselor to the El Salvadorian
embassy. The contention did not find acceptance either, considering that he
was neither proceeding to take up his post, nor returning to resume his post,
when he stopped at Britain. He was also not on the territory of the sending
state. Though article 40 seems to have been given a rather strict
interpretation, in principle, any other interpretation would have defeated the
very purpose of according diplomatic immunity, considering the extent of
importance and level accorded to the office of diplomatic missions. In R v.
Guildhall Magistrates Court, ex parte Jarret Thorpe,[1352] a counselor
had travelled to London in a bid to buy furnishings for the Rome Embassy.
Her husband was to join her to assist her with luggage. When he arrived at
the United Kingdom, he was told that his wife had already left for Rome,
and while he was waiting to board a flight to Rome, he was arrested by the
police in pertinence to a criminal case pending against him in London. In the
course of the decision, it was held that the counselors husband was entitled
to immunity under the ambit of article 40.
Waiver of Immunity
Immunities accorded to diplomatic agents are not bound to be adhered to by
those enjoying such rights, in that they have the right and choice to waive
this immunity. Article 32 of the Vienna Convention on Diplomatic Relations,
1961, indicates that the jurisdictional immunities enjoyed by diplomatic
agents and everyone else enjoying such immunity as under Article 37, may
be waived by the sending state. The waiver must be explicitly made.[1353]
When made, it is necessary that the waiver be made with full knowledge of
the circumstances and of the rights involved. The tenet upon which such
right of waiver is built is the fact that the immunities and privileges
accorded to its diplomats is solely the concern of the state that sends them.
Diplomatic immunity is not a privilege accorded to the individual for the
sake of the individuals benefit, but rather a privilege accorded in a bid to
protect and benefit the state sending such diplomat as its representative, in a
bid to ensure the fulfillment of his duties as the states representative on
foreign soil, without any interference or destruction of his independence of
office.[1354] Once waived, it does not matter if the diplomat involved
wants to retain his rights, for the immunities and privileges accorded shall
352

no longer continue. Therefore, it is also clear that a diplomat or one

enjoying such immunities, himself, cannot lay claim to ask for a waiver of
his rights. It is exclusively a sovereign right, and shall remain so.[1355]
But, merely because a defendant puts in a defense in the course of any
proceedings brought against him, it did not imply that there was a waiver of
immunity therein.[1356]
Once a diplomatic agent or any such other individual who is entitled to
immunity under Article 37 begins or initiates legal proceedings, it would
amount to a waiver and automatically, he will be precluded from invoking
immunity from jurisdiction in the context of any counter claim that is related
directly to the principal claim in such proceedings, as according to Article
32(3). Irrespective of whether there is a power to waive the immunities
under article 22, there could be no agreement between the parties that could
create room for such a waiver to exist, or that could bind the state to a
waiver. There could only be an undertaking given by the state to the court
itself when the court is called upon to, or does exercise jurisdiction in an
issue otherwise protected by immunity.[1357]
The occurrence of waiver of immunity is a rather rare and unusual event,
more so in the context of criminal jurisprudence.[1358] However, instances
are found where it is granted occasionally in a realm comprising routinely
sought waivers. When an official of Zambian origin in its embassy in
London was found to have been suspected of offences involving narcotics,
waiver of immunity was undertaken almost immediately.[1359] In R v.
Madan, the individual entitled to diplomatic immunity, (the defendant), was
employed in the passport office of the Indian Mission in England. He was
convicted for having obtained a season ticket, and for having used false
pretences to get money. The Deputy High Commission indicated
preparedness to waive the defendants immunity in keeping with the needs
of justice. In another decision, R v. Kent,[1360] the code clerk in the
American Embassy in England was charged for stealing two documents
from the office, following which he was dismissed from service. His
immunity was waived by the American Ambassador, and subsequently, he
was arrested and tried by the court, consequently was sentenced to seven
years worth of imprisonment.
Termination of the Diplomatic Mission
The diplomatic mission may be brought to an end by deploying five different
means, at the behest of either the sending state or the receiving state. This
facet and its role in diplomatic law is only indicative of the fact that the
installment of the office of diplomatic missions is purely in a bid to
preserve and pursue relations, and for the sake of retaining representatives
353

on foreign terrain to work towards maintaining inter-state relations.

The first method is the recall of the envoy by the sending state. When it is
found that the relations between the sending and receiving states are no
longer friendly, or are found deteriorating, in a bid to express its
displeasure towards any of the policies of the receiving state, the sending
state is free to call back its diplomatic representatives. In terms of a
procedural mandate, the letter of recall is accorded to the Head of the State
or the Minister of Foreign Affairs of the state that receives the mission. The
envoy is then given what is called the letter de Recreance in indication that
he is to return to the sending state, thereby bringing his tenure as a diplomat
to an end. It is also possible for the recall of a diplomat to be orchestrated
at the behest of the receiving state. A classic example of the latter is the case
involving India and Zambia in 1981, where India recalled its High
Commissioner in Zambia, called Ravi Tandon, on account of his alleged
remarks made on a book by the erstwhile President of Zambia, Kenneth
Kaunda, which was not appreciated by the latter. Similarly, the deputy
military attach in the French Embassy in India was recalled when it came
to light that he was involved in espionage, in 1985.
Article 43 of the Vienna Convention on Diplomatic Relations, 1961
provides that a diplomatic agents tenure may be brought to an end by the
issue of a notification, sent either by the sending state to the receiving state,
or, vice versa in that the receiving state no longer recognizes the diplomatic
agent as a member of the mission in keeping with article 9(2) of the
Convention.
The last method is the process of declaring the diplomatic agent a persona
non grata, by the receiving state. The term essentially translates to mean an
undesirable person, without assigning any reason. The right emanates from
article 9 of the convention. The normal circumstances where such a
declaration comes into play is when the diplomatic agent involved has
presented himself as being a vehicle of gross misconduct. The idea of
resorting to the mode of termination of diplomatic relations is based on the
fact that it is an unfriendly act, used to depict displeasure towards the envoy
of the sending state. Following this mode, Pakistan declared the Iraqi
ambassador and another attach of the same mission as persona non grata,
in 1973.
In addition, it is possible for a mission to draw to an end when the object of
the mission has either been achieved, or the period accorded for its tenure
has drawn to an end. Sometimes, missions may be established for the sake
of specific purposes, or for specific periods of time. The end of such forms
of missions does not emanate from a sense of displeasure, but rather a
354

professional commitment.
The last method is more of a situational course of action. Outbreak of war
or armed conflict does not terminate a mission by itself, but states may find
the outbreak of hostilities as a possible obstacle to the carriage and
discharge of functions essential to the mission itself. The state may be
forced to terminate the diplomatic mission in its own interests. This may be
temporary, most times, and hence can be renewed.
Once a mission is terminated, whether permanently or temporarily, article
45 provides that the sending state is free to entrust custody of the premises
of the mission, with all property and archives, to a third state that is
amicable towards the receiving state.
Consular Rights, Immunities and Privileges
Consuls refer to the representatives of their own state in a foreign state, but,
they are not accredited to the receiving state, and thus do not enjoy the
privileges and immunities that diplomatic agents enjoy. The appointment of
a consul is undertaken through a commission issued by the governments, and
the receiving state accepts the consul by issuing a letter of permission,
called the exequater. The duties of a consul essentially pertain to taking care
of commercial and trade interests of the sending State and its nationals.
However, practice indicates that they are vested with several other duties,
such as granting passports, visas, executing notorial acts for the nationals of
the sending state, registering marriages, births, deaths for the sending state,
and conducting supervision and inspection of vessels and aircrafts attributed
to the sending state. Consuls are particularly obligated to assist the nationals
of the sending state, especially when they are in distress, such as finding
lawyers, or visiting prisons or even contacting local authorities. However,
consuls are prohibited from intervening in the judicial process or internal
affairs of the receiving state, or to give legal advice or investigate a crime.
[1361] Consuls exercise very few political functions, and do not enjoy
immunity to the extent accorded to diplomatic agents.
In general practice, consuls are accorded special privileges and immunities
by way of bilateral treaties. Customary law, usages and state practice
worked out a network of principles for the immunities of consuls.
Accordingly, the rule evolved that a consul is not immune from local
jurisdiction, except in pertinence to judicial and administrative actions
performed in the course of exercising consular functions. The premises of
the consul are not inviolable from entry by the servants or agents of the
receiving state. Differences in practice and policy begged for uniformity,
which paved the way for the creation of the Vienna Convention on Consular
Relations, 1963. All those issues remaining unhandled by the convention
355

fall within the realm of customary international law. In pursuance of the

convention itself, states are free to conclude treaties to supplement, confirm,
extend or amplify the provisions of the convention itself, in keeping with
article 73.
Consuls, in keeping with Article 9 of the convention, are of four classes,
namely, Consuls-General, Consuls, Vice Consuls and Consul Agents.
Consuls General are appointed by the Head of the State by the Head of the
State. He is the Head of the Consul Office, and by his authority, appoints the
Consuls and Vice Consuls. Consul agents may be appointed either by the
Consul General or the Vice Consul.
By the convention, consuls are accorded a status on the lines of that of
diplomatic agents in certain aspects, although there is no accordance of
complete immunity from local jurisdiction, unless the consul himself
functions in a diplomatic capacity on behalf of his state, or, when such state
does not have diplomatic representation, as explained by Article 17. In
terms of the immunities accorded, Article 41 explains a cache of rights and
immunities. Consul Officers shall not be liable to arrest or detention
pending trial, except where a grave crime is involved, and pursuant to a
decision of a competent judicial authority. Secondly, consular officers shall
not be committed to prison, or be liable to any other form of restriction on
their personal freedom except in execution of a judicial decision bearing
final effect. Lastly, if criminal proceedings are instituted against a consular
officer, he is under an obligation to appear before the concerned competent
authorities. The proceedings shall be conducted in a manner that will not
hamper the exercise of consular functions. When it is necessary to detain a
consular officer as under the first provision the proceedings shall be
instituted against him with least delay.
In addition, consular officers and employees are not amenable to the
jurisdiction of the judicial or administrative authorities of the receiving
state in pertinence to official acts, as under Article 43(1). Consuls are not
generally amenable to local jurisdiction for any act, unless there is
governmental assent towards the proceedings instituted. Furthermore,
Article 57 makes it clear that a restriction is extant in pertinence to consular
employees, service staff or members of their family, for any non-official
acts, in pursuit of their own private, gainful occupations in the receiving
State. Consuls are exempted from local taxes and customs dues, and also
enjoy inviolability of their official papers and archives.
Consular premises are substantially inviolable as under Article 31 of the
Convention, which purports that the authorities of the receiving state shall
not enter that part of the consular premises which is used exclusively for the
356

purpose of the work of the consular post, except by permission, which may
be assumed in the face of any form of disasters that need immediate
protective action. This was seen to have been pursued in 1948, where
authorities of American origin in New York entered the Soviet Consulate
General to provide medical assistance and to investigate the fall of a Soviet
national from a third storey window, who refused to return to the Soviet
Union.[1362] Consular premises and property on the premises, in whatever
form and substance, cannot be requisitioned for the sake of national defense
or public utility. If it is necessary that they be put to use thus, there would be
adequate and effective compensation accorded promptly to the sending
State. Consular immunities are accorded purely for the sake of allowing the
consuls to perform their duties properly.
Consular immunities and privileges can also be waived, as under Article
45, and the process involving the commencement and termination of such
privileges and immunities as under article 53 are entirely similar to the
provisions under the Vienna Convention on Diplomatic Relations, 1961, as
under article 32 and 39. Consequently, the rules of declaring a diplomat
persona non grata apply even to a consular staff as under article 23, and
the sending state is also free to withdraw its exequatur from the consul.
It is clear without doubt that the Convention exalts the status of consuls to
that of diplomats. The trend is not a surprising one, considering that it has
become commonplace for a state to amalgamate its diplomatic and consular
services and have one set of people function as both.
Personnel on Special Missions
Diplomats and consuls represent a segment of a states representatives on a
more-or-less permanent basis. However, this does not rule out the
deployment of ad hoc diplomacy and special missions driven by specific
purposes, from one state to another. In practice, some of these missions are
either led by the Heads of State or any ministers constituting their portfolio,
in a bid to perform specific tasks which may spawn from negotiations to
participation in national events of the receiving state.
No special status exists for members of these special missions under
customary law. However, the increased number of instances depicting state
resort to such missions has led to the installation of the Convention on
Special Missions, 1969, as adopted by the UN General Assembly. The
convention defines a special mission as being a temporary mission of a
state, sent by one state to another, with the consent of the latter, for the
purpose of dealing with it on specific questions or performing in relation to
it a specific task under article 1(a). There is no differentiation made
between missions of technical nature and those of a political nature. The
357

convention is based largely on its two predecessor Vienna Conventions of

1961 and 1963, in respect of privileges and immunities of the head and
members of the special missions. Immunities are accorded to special
missions purely on the basis of the need for efficiency in performance of the
tasks and responsibilities accorded to the missions. While this is indeed
true for immunities and privileges, practice reveals that there are close to no
instances of an ad hoc or special mission being declared as persona non
grata by the receiving state. The receiving state, however, is free to notify
the sending State as under article 12(1), if any member of the mission is not
acceptable, in which case the sending state shall either recall the person
concerned, or terminate his functions with the mission itself.
Representatives to International
Organizations
States have created international organizations, such as the UN, in a bid to
facilitate cooperation and amicable relations. Representatives of states and
members of permanent missions to such organizations function on behalf of
the respective sending states. The Convention on the Representation of
States in their Relations with International Organizations of Universal
Character, 1975, governs representatives of states in international
organizations. The Convention speaks of the status, functions, privileges and
immunities of members and representatives to permanent missions or
representatives to international organizations, permanent observer missions
of non-member governments to international organizations and
representatives or delegations to conferences of States convened by or
under the auspices of international organizations or their organs. The
privileges and immunities accorded are more or less on the lines of those
accorded to diplomatic agents as under the Vienna Convention of 1961. In
practice, however, it is disheartening to note that the convention is deemed
to bear lesser importance, considering that most of its provisions are
already incorporated in other documents of relevance.
Immunities of International
Organizations
The immunities of international organizations are usually governed by their
own treaties, such as the General Convention on the Privileges and
Immunities of the United Nations, 1946, or by the headquarters agreements
as concluded with the host state where the organization itself is seated.
[1363] Immunity is accorded to international organizations in a bid to
ascertain their functional autonomy and efficiency. There are no sovereign
overtones, except that traces exist in a bid to protect the interests of the
member states of the organization.
358

According to the convention, the UN has complete immunity from all legal
process as under Section 2, so as to avoid the intervention of municipal
courts in its functioning. Sections 3 and 4 indicate that all the premises,
assets, archives and documents of the UN are inviolable. Section 7 exempts
it from paying direct taxes and customs duties, and section 18 exempts
employees and staff of the UN from income tax on their salaries, so as to
avert a scenario where states themselves would be making payments to
those states where the UN has its presence. The Secretary General and the
Assistant Secretary General enjoy diplomatic immunity under section 19,
and other staff members enjoy limited immunities such as that from legal
process in pertinence to official activities and exemptions from military
service under article 18. Staff immunity should be waived by the Secretary
General if it is opined that the continuation of immunity would impede
justice, and waiver will not prejudice the interests of the UN, as under
section 20. Provisions for appropriate modes of settlement of claims against
the UN need to be made by it under section 29, which has been done so far
by insurance against tort liabilities and arbitration agreements and the like.
Sections 11 to 16 explain that all individuals appearing as representatives
of member states attending the UN meetings are accorded privileges and
immunities on par with diplomats, with the exception that immunity from
legal process extends only to official acts, and custom duty exemptions
extend only to personal baggage.

359

PART III: INDIVIDUALS AS SUBJECTS OF

INTERNATIONAL LAW

Chapter 13- The Individual as a Subject of

International Law
An individuals status as a subject of international law has been debated
since as long back as the evolution of international law itself, having
originated since the inception of the law itself. Different doctrines have
perceived the status of individuals as subjects of international law, some of
which have been affirmed, some rejected. A considerable part of the debate
lies couched in the astute lack of definitive limits and precision of the
concept of international w as a subject itself. The lack of any definitive
statute or provision of law, enumerating certain entities as subjects of
international law has only augmented the theoretical value of the question.
There is neither a rule that enunciates that only a certain set of entities are
subjects of the field, nor a rule which determines criteria to afford a
subjective analysis based on a yardstick.[1364]
At the inception, the application of the law was perceived as tending
towards a universal community of individuals was sustained and the
individual was identified as a reference point of rights and duties.[1365] At
360

that point, states were the subjects of international law, which meant that
they were free to act, or perform any activities free of any form of
interference from outside. Before the World Wars, sovereignty also led to
colonization, as states wielding superior authority laid claims over less
tapped zones in the world. With the end of the World Wars, decolonization
came into play, as colonies evolved into states bearing sovereign powers in
their own right. At that juncture, as international law began to evolve into a
field of modern relevance, states were still subjects of international law in
entirety. The earliest question on international personality was dealt with in
the Case of Reparation for Injuries suffered in the Service of the United
Nations,[1366] where the ICJ held that the organization, i.e., the United
Nations, is an international person, implying that it is an entity capable of
possessing international rights and duties, and that it had capacity to
maintain its rights by bringing in international claims. With the evolution of
international law, until the present day, there has been a progressive trend
towards widening the list of subjects it applies to.[1367] The history of
international law is inherently linked to the history of sovereignty and the
evolution of sovereign states as the pivot point for the functioning of
international law.[1368] However, at the end of the World Wars, concerns
were rife to put an end to ghastly and terrible events such as the Holocaust.
The classical understanding of sovereignty changed into a more human
oriented perception, as the concept of absolute sovereignty functioned to the
detriment of states and their people. The development was beautifully
phrased by Wolfgang Friedmann as being a movement from coordination to
cooperation.[1369]
Sovereignty demanded that a state keep its independence sacred, and avoid
any form of interference from any outside quarters. The strongest outcome of
this norm was the prohibition on the use of force, except in the event of self
defense, a notion that found personification statutorily under Article 2(4) of
the UN Charter and Chapter VII, specifically, article 51 of the UN Charter,
respectively. The need to evolve an international anarchy propelled the
evolution of international cooperation, which was slowly institutionalized
through the United Nations. Individuals became the core of all action, as
each state emerged responsible for their people, citizens and aliens on their
territory. The awareness of a shared responsibility, the need to cooperate
and the obligation to assert an independent, dignified living were all the
catalytic factors to creating an international community.[1370]
Allied with the core tenets of state sovereignty are the principle of
citizenship, nationality and the concept of aliens. Individual rights were
361

essentially those that were ascribed, or granted to the citizens of a state,

thereby creating a system of inclusion and exclusion. Non-citizens enjoyed a
certain measure of rights, but not an equivalent to the extent accorded to
citizens themselves. This resulted in the creation of a world where the
individual became the fulcrum of determination of the extent and scope of a
states powers and functions. Even before the United Nations came into
place, there was enough done to protect the individual at the international
level, with rules in place to govern war on combatants and civilians, and
rules pertaining to aliens in a state facing an armed conflict, where they
were to be accorded a minimum level of protection. With the advent of
human rights as a concept and the understanding that all states are under an
obligation to ensure a certain minimum standard of rights for everyone,
irrespective of their nationality or origin, it came to be clear that the
individual did have a role to play under the ambit of international law, as an
entity clothed with rights. The protection of human rights became a rather
important concern of all States.
International criminal law has created a path to ascertain room for an
individual to be clothed with duties. With the Nuremberg Trials and the
subsequent cache of incidents where an individual needed to be extradited
to be subjected to a trial, it became evident that even if there were
affiliations to states, for most of these individuals, there were still duties
demanded of them under international law. With the evolution of the
International Criminal Court, there was a path-breaking development in
international law, in 1945, as the Criminal Court essentially takes into its
hands the treatment of individuals at the international level, by dealing with
human rights and humanitarian law.
The adoption of human rights conventions, of both kinds, i.e., those that
grant substantive rights and those that penalize the violation of these rights,
by several states only go on to affirm the extent of recognition the individual
has been accorded under international law. By having adopted and ratified
such conventions, the core contents of each of these conventions have come
to regulate the behaviour of each individual, indoctrinating a certain
yardstick of behaviour as being the requisite norm. A deviance from the
standard so laid down would invariably elicit sanctions at the municipal
level, in the form of penalties subscribed to by the state. In the event that the
atrocities committed by an individual take on shades of flagrant violations
of humanitarian law, or jus cogens norms, the state may find an option in the
International Criminal Court to prosecute the offender if they are members.
In the event that they are not members of the Court, the Security Council may
step in and authorize the International Criminal Court to intervene. Other
362

judicial remedies at the international level against individuals are found in

the form of the International Criminal Tribunal for the former Yugoslavia,
the European Court of Human Rights and the Criminal Tribunals for Sierra
Leone and Rwanda.
The core tenets of legal positivism hinge upon the stellar ideals of legal
security, predictability, consistency and coherence, which, as features of the
philosophy, oftentimes constitute the features of any legal system based on
the rule of law. International law is extremely dynamic, given that it governs
not just the people of one state, but the people of all states. The ethical
considerations underlying international law have come to be accepted and
respected by a majority of states. The contemporary international realm
hinges upon a set of values that have come to be accepted in the form of
international treaties, like the UN Charter and the UDHR, which evince
elements of both human rights and state responsibilities. The notions of
individual rights and responsibilities are tightly wound with state rights and
responsibilities under international law, creating a tightly woven weft of
considerations which propel the factors affecting the behaviour of each
state, and each individual, be it at the international or municipal level.

Chapter 14- Human Rights

Human rights refer to the set of fundamental rights that are inherent in every
individuals existence in society, and are therefore those to which every
individual is rightfully entitled to enjoy.[1371] They are to be guaranteed to
each individual on account of the very fact that they are human beings, and
are fundamentally inalienable and essential for progress, development and a
363

life of acceptable standards. Human rights are largely those that cannot be
taken away by any gubernatorial act, or any policy of the legislature of a
state. Albeit a principle couched in the earliest days of natural law, human
rights found a more accepted stronghold only after the Second World War,
where the legal set up evolved by leaps and bounds, in what is best termed
a post-war development.
In a pre-war setting, individuals were not given as much protection in terms
of the rights enjoyed by them. Segregations into categories of nationals and
aliens precluded the guarantee of several rights that were rightfully due to
myriads of people. Although in principle, the ideas of according rights and
liberties have been around for a considerable duration in human history,
there wasnt so much of an explosion of the concept in theory and practice
as there is today. European history has formed a considerable basis of the
present form of Human Rights. The Twelve Articles of 1525 are the earliest
records of human rights in the European World, having constituted a large
part of peasants demands towards the Swabian League, in the course of the
German Peasants War in Germany. Nearly two decades later, in Spain, the
earliest debate on human rights took place, where one school of thought
sought to accord rights by segregating people into different categories,
while another school of thought attempted to accord equal rights to freedom
of slavery for all humans, irrespective of their race or religion.[1372] The
English Bill of Rights, 1683, titled the Act Declaring the Rights and
Liberties of the Subjects and Settling the Succession of the Crown, and the
subsequent Scottish Claims of Right were contributive towards looking at
oppressive gubernatorial conduct as illegal. The American struggle for
independence in 1776 witnessed the creation of the United States
Declaration of Independence, and the French Declaration of the Rights of
Man and of the Citizen emanated at the end of the French Revolution in
1789, both of which are considerably relevant documented contributions to
the world of Human Rights Law.
Human rights were accorded considerable importance in philosophy, as
well, in the 18 and 19 Centuries. The term itself, could have possibly
taken root in Thomas Paines Rights of Man and William Lloyd Garrisons
work, The Liberator, where he was known to have tried to enlist his
readers in the greater cause of human rights.
In 1815, the United Kingdom encouraged states to make treaties to suppress
slave trade, after having passed the Slave Trade Act, 1807 and the Slavery
Abolition Act, 1833. Similar movements were seen to have existed in the
United States, where all northern states, in succession, abolished slavery as
th

th

364

a practice, which gave way to the American Civil War, following which the
American Constitution came into place.
The First and Second World Wars showed the world the ghastly horrors of
warfare, which the world community vowed to avert in the future, at all
costs. The League of Nations emerged at the end of the First World War in
1919, consequent to the negotiations preceding the Treaty of Versailles
included disarmament, prevention of war by deploying collective security
and settlement of disputes between states using negotiation and diplomacy
among other things. Several rights enshrined in its charter inspired later
documents on human rights, such as the Universal Declaration of Human
Rights. Subsequently, the Second World War broke out, and the whole world
watched the most atrocious violations of fundamental human rights of
several individuals, as colonial domination, racist and anti-Semitic
considerations came to the fore, becoming the vilest causes resulting in
death, destruction and complete erosion of respect for a human life. In 1945,
at the Yalta Conference, the Allies conferred, and arrived at a conclusion
favouring the creation of a new body to assist the creation of a peaceful,
war-free future, which led to the formation of the United Nations. Since
1945, the UN has been extremely proactive in installing machinery in place
to protect human rights, along with all its other responsibilities.
Today, human rights has achieved global proportions, and are no longer
confined to the nitty-gritties of exclusive state accordance to citizens. In the
pre-war era, the treatment of nationals remained couched within the
municipal domain of each state, while aliens were protected from state
actions under international law.[1373] As early as the 19 Century,
however, a few exceptions came into play, allowing humanitarian
intervention to work its way towards protecting individuals. The Turkish
Empire was prevented from embarking upon grave atrocities towards
humanity, and the French intervention in Syria during 1860-1861 sought to
avert massacres of Maronite Christians.[1374]
Understanding the Concept of Human
Rights
As a concept, human rights is as dynamic as international law itself is, given
the extent to which it has been subject to change and evolution, as it has
remained integrated with the entire political and legal history of the
international order, as it stands today. Nevertheless, it has its own roots
which accord it a sense of value-based existence, in the fact that every
individual has certain rights that are fundamentally inalienable and legally
enforceable, that protect him against interference from the state and
th

365

gubernatorial conduct that amounts to an abuse of power. The evolution of

human rights, by many a scholar, has been strait-jacketed into different
generations of its existence, distinguishing the different phases of
evolution of the conventional norms of human rights, from the form in which
they exist presently. The set of rights that safeguard an individual from state
interference and adverse governmental conduct constitute what is known as
the first generation human rights. These rights are inherent in every
individual, and remain couched in his rights to pursue his interests merely
by virtue of his existence as a human being. They deal fundamentally with
liberty and participation in political life, and encompass a cache of rights
bearing civil and political overtones. From these first generation rights,
there evolved a new species of rights, termed the second generation human
rights, which included all those rights that allowed the individual to make
claims to welfare benefits from the state. These rights were an addition,
over and above the basic first generation ones, augmenting the need for a
livelihood, rather than existence. The rights were in pursuance of the
recognition of the notions of equality and were largely social, economic and
cultural in nature. The last few years have witnessed the evolution of the
third generation human rights, which refer to the rights that traverse the
basic civil, political, social, cultural and economic rights. The term itself is
still unofficial, but includes group rights, and collective rights, such as the
right to self-determination, economic and social development,
environmental protection and cultural heritage. Criticism is rife,
complaining that the watertight segregation of human rights into generations
replacing one another is fallacious given that it virtually abolishes the
primary rights of the human being. However, there truly is no accordance of
a substitutive position for one generation in respect to the other. If anything,
each succeeding generation of these rights have only just been adjuncts to
the original cache of rights that existed at a time preceding the evolution of
new ones. Moreover, each generation of rights differs from the other in
the light of the implementation that goes into its practical application. The
municipal courts are capable of effectively protecting civil and political
rights with a view to avert state interference, by directing the conduct of
investigations into allegations suggesting a violation or abuse of the rights
accorded to the concerned individuals. Where the rights involved are social
and economic rights, though municipal courts have been seen creating room
for the enforcement and implementation of the rights themselves, it needs
greater cooperation from the other two wings of the government, in that
there needs to be both, finance and policy decisions in favour of putting the
rights into existence. However, with the emanation of the third generation
366

rights, there is a slight deviation from the tried and tested procedure of
approaching the municipal judiciary for their enforcement. Of course, there
is plenty to show that environmental and cultural rights of minorities have
indeed been catered to by a plethora of municipal courts world over, but
differences exist when it involves a right of self-determination, which
oftentimes involves a scenario where the people themselves take the law
into their hands, and do not knock at the doors of the court in their quest to
accord themselves a political, social, cultural and economic identity. These
differences at the municipal level have inspired a dichotomy of sorts under
the international legal order, where different conventions, treaties and
instruments have been put to use in a bid to assure and accord human rights
of different kinds. The third generation rights, even under international law,
are in the midst of a setting where enforcement procedures are conspicuous
by their absence, and therefore give way to inter-state relations to function
as the basis for their implementation.[1375]
Part of this problem evidently stems from the lack of a universal definition
of human rights in the truest sense of the term.[1376] Everyone is aware of
the rights they have, most states are of the notion that they should rightfully
ensure and guarantee their people these rights. With all due credit to the
states, enforcement of human rights has not suffered a very damaging setback
with the absence of a definitive perspective in terms of a conceptual
understanding. Western states follow their own constitutional models, as
evolved from the Age of Enlightenment, emphasizing upon the civil and
political rights as true and liberal fundamental rights and freedoms, and
accords negative rights that are directed towards overreach by the state and
abuse of power by gubernatorial conduct. Socialist states have been given
to understand human rights as based on the principle that they have to be
guaranteed by the state in an attempt to ensure common good, collective
benefits as opposed to individual freedom. Theocratic states deal with
human rights in their own way, couched in religious ideology. Developing
states, however, cater to human rights in a rather scattered manner, given
that their policies need to revolve around doing away with poverty and its
related cache of evils, and reinstate a state of economic advancement and
development. Given their living conditions and the state of most of the
populace in such states, it is evidently essential that their people enjoy the
right to life, the right to shelter, the right to food, health and clothing, instead
of, perhaps, the freedom of speech and expression. A time would indeed
come when the latter right would be of more relevance to their living. Many
Arab states, as the spate of revolutions in early 2011 proved, were
oppressive towards the rights of their people, forcing them to live under the
367

thumb of draconian living. The movement of the people of the Arabic states
took the world by storm, as it virtually announced that the right of selfdetermination was here to stay. Western Human Rights values have
permeated a considerably large part of the world map, where equal
weightage for the individual and the group have been accorded in the ideals
and rights. Though Asia did witness open challenges to the excessively
individualistic and decadent human rights ideologies of the West,[1377]
most policies of the West have now come to be accepted as a yardstick to
live up to. Cultural, economic and theological considerations lie at the base
of these differences. However, there is one common philosophy uniting the
different takes on the field of Human Rights- the fact that the individual
deserves to be protected. Though subjectivity and relativity colour these
considerations amply, there is truth in the fact that each state seeks to assure
its individual that he is indeed protected, that he does have some rightshowever many or few, depending exclusively on the sovereigns policies.
This also drives home another important fact. Sovereignty still maintains a
rather high position in the question of protecting human rights. Many states
are found believing that the protection of their own nationals is something
only they can rightfully deal with. This perception changes the way
international law looks at Human Rights. However, the regional
implementation and dealings with human rights are more uniform and pursue
a consistent understanding of the law itself.
Despite such differences, the advancement of human rights at the
international level has been the most unexpected innovation in international
law. The field has enough capacity to uproot the core value of sovereignty.
The protection of human rights has never been as important before, as it
presently is, and many a state pivots around their obligations towards their
people in determining and pursuing their own policies.
Principles and Rules governing
Human Rights
Human rights in the international legal order, has been brought to fore by the
adoption of conventions and declarations, that have partly codified
customary international law and have also added to the extant expanse. In
the course of having evolved into one of the most prominent parts of
international law, the field has certain qualitative attributes to it that have
functioned as some basic principles upon which the applicability and
enforcement of the principle have evolved.
Indivisibility
Human rights have been characterized and thereby categorized into two
368

kinds, civil and political rights, and social and cultural rights. However, in
principle, these rights are indivisible, in that both sets of rights are interconnected. Without one, the other can neither subsist nor be enjoyed, for
such rights are purely based on success emanating from combination.
Without civil and political rights, there can neither be an assertion nor
enjoyment of economic, social and cultural rights. This principle has come
to be known as the full belly thesis.[1378] The International Covenant on
Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights, 1966, emphasize that the ideal of free human
beings enjoying civil and political freedom and freedom from fear and want
can only be achieved if conditions are created whereby everyone may enjoy
his civil and political rights, as well as his social, economic and cultural
rights. In the 1993 Vienna Declaration and Programme of Action, the
indivisibility and interdependence of all human rights has been reaffirmed,
where the World Conference on Human Rights mentioned that all human
rights are universal, indivisible and interdependent, and related. The
international community must treat human rights globally, in a fair and equal
manner on the same footing, with the same emphasis.
The rule finds acceptance on paper, while practice does not evidence a
situation of a similar kind. Some western states have accorded more
preference to civil and political rights, sometimes even at the cost of
exercising economic, social and cultural rights.
Jurisdictional Priority
Human rights, though conferred under international law, have permeated
state boundaries and have percolated to the level of each individual, within
the ambit of domestic law. The fulcrum of international law is the respect
fostered for sovereignty and sovereign rights, thereby making sublime the
notion of non-intervention into other states internal affairs. Nevertheless,
this principle is not absolute, in that the values of human rights laws, since a
state cannot plead non-intervention as a buffer when another state intervenes
with the aim of protecting human rights. Consequently, there is no doubt that
if a state that accepts the rights of an individual through a petition under
international procedure, it cannot seek to submit a claim that the exercise
thus is tantamount to a case of interference with its domestic affairs.[1379]
Therefore, under this rule, it is clear that each state has the right to deal with
its own internal affairs. Consequently, when an individual has suffered a
human rights violation, he is free to approach any court, which is mostly
determined by the laws of the state itself, to redress his grievance. This is a
right for the sovereign entity itself, as the individual has to approach the
369

courts of municipal confines before venturing towards international

enforcement.
Exhaustion of Domestic Remedies
Given that it is the courts of the state concerned that enjoy the first dose of
jurisdictional rights as far as human rights, it is the rule that each individual
must approach the courts of his state first and exhaust every remedy on offer
to redress a violation of his human rights. The idea is to preserve the states
hold over its internal affairs, in pursuit of its sovereign powers and rights.
[1380] In the event that there are no remedies available, or, are
unreasonably prolonged in bringing fruitful results, the affected individual
need not compulsorily resort to internal provisions.[1381] A state cannot
prevent its people from accessing redress on the international level by
providing paper tigers that imply that a law, or a provision, is installed and
kept in place. It is important that these procedures, provisions or laws, be
installed in practice, with as much importance and ceremony as it finds its
place within the legal realm of the state involved.[1382] The rule of
exhaustion of domestic remedies has been made part of various
conventions- Article 41 (c) of the International Convention on Civil and
Political Rights, Article 2 of the Optional Protocol related therein, Article
11 (3) of the Convention against Racial Discrimination, Article 26 of the
European Convention, Article 50 of the Inter-American Convention, Article
50 of the Banjul Charter and a host of other conventions and treaties.
Hierarchy, Priorities and Arrangement of
Rights
Although there is no hard and fast rule that orchestrates the labeling of
certain rights as superior to, or, more important than the others, in practice,
certain rights have evolved to the extent of attaining such an exalted
position, that there can be no derogation even in the event that a war or an
emergency breaks out. On a generic level, these rights have come to include
the right to life, except in all lawful events that affect the right, the
prohibition of the carriage of torture and slavery, and the rule of prohibition
on applying criminal laws with retrospective effect. The International
Convention on Civil and Political Rights accords, by article 4, that the right
to life and recognition as a person before the law, freedom of thought,
conscience and religion, prohibition on torture, slavery, retroactivity of
criminal laws and imprisonment on the sole ground of inability of fulfilling
a contractual obligation, with the status of being non-derogable.[1383] The
segregation occurs due to the understanding of the rights and their
implications on the life of a human being. Human Rights charters,
370

conventions, documents and legislations do not function as the sole

repository of an individuals rights, but these rights are inherent in every
individuals existence as a human being. Therefore, when the application of
a particular law is suspended, there is no reason in its suspension to form
the basis of depriving a person of their rights. However, there are certain
rights that can be suspended during emergency, not out of the fact that the
government can, because it is in a position of power, but out of the simple
logistical fact that there may not be a possibility to guarantee them in the
face of emergency. As a consequence of this categorization, therefore, there
remain certain rights that are capable of being suspended. These nonderogable rights enjoy an exalted position merely because of their
significance in the life of an individual, and therefore possess a special
place in the hierarchy of rights. To some extent, it has been a generally
accepted notion that these rights have been accorded the status of jus
cogens.
Rights per se, do not exist only within the confines of treaty law, but also
within customary international law, as a consequence of concerted state
practice. Human rights have also come to be known as erga omnes
obligations, for state parties, particularly because they are no longer
confined to territorial enforceability.
Human Rights and the United Nations
The United Nations emerged at the end of the Second World War, signaling
the end of an era where the most ghastly forms of atrocities were exhibitedanti-Semitism, rape, murder, torture, bonded labour and racial segregation
to name a few. With the onslaught of the United Nations, the individual was
accorded an exalted position under international law, in a move that
possessed such scale and effect had never before been witnessed. The
position of human rights under the ambit of the international system is
explained from different perspectives.

The Legislative Realm

The UN Charter
The Charter was a creative catalyst in spurring activity towards protecting
the fundamental freedoms of all and sundry, to the point that human rights
became an integral part of the domestic legal systems of extant and newly
emerging states. Though the Charter itself neither did anything to define the
terms of fundamental freedoms and human rights, nor lay down machinery to
ensure their implementation, the Charter itself heralded a new era in the
371

legal system. Subsequent United Nations instruments came into place and
installed the equipment that theretofore was conspicuous by their absence.
Article 1 of the UN Charter includes, among others, the objective of
promoting and encouraging respect for human rights and fundamental
freedoms for all, without distinction as to race, sex, language or religion.
Further, Article 55 goes on to assert that the United Nations shall promote
universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.
Article 56 indicates an affirmation on part of all member states that they
shall take joint and separate action in cooperation with the Organization for
the achievement of the purposes set forth in article 55. The provision makes
it obligatory on part of each of the states to implement the contents of
Article 55, but leaves a rather non-committal arrangement in place calling
for fulfillment in the future. Perhaps out of the discretionary quotient, the
present-day condition of many states indicates very frugal progress in the
direction of guaranteeing human rights. A state that has deliberately sought
to move backwards in pertinence to human rights would perhaps be deemed
as having broken Article 56, as was explained in the Namibia Case,[1384]
to establish and enforce distinctions, exclusions, restrictions and limitations
exclusively based on grounds of race, colour, descent or national or ethnic
origin which constitute a denial of fundamental human rights is a flagrant
violation of the purposes and principles of the Charter. The two provisions
do not confer rights on the individual per se, but rather accords the duties on
the states to provide for the individuals.
In addition, the trusteeship system as created by the UN Charter, that had
replaced the Mandate system of the League of Nations, under Article 76,
also encouraged and fostered respect for human rights. Article 73 of the
Charter recognized the principle that the interests of inhabitants of selfgoverning territories were most important, and in addition, also recognized
and accepted the obligation to promote the rights and well-being of the
inhabitants as a sacred trust. Though the Charter has indeed outlined some
of the basic tenets relating to human rights, laying down a rather broad
foundation for the evolution of human rights that began from that point, there
were no enforcement procedures whatsoever.
The enunciation, evolution and accordance of protection to human rights
have come into play largely because of the United Nations. A range of
declarations and treaties have been installed since, along with their specific
implementation machinery.
The Universal Declaration of Human Rights
372

The first of these was the Universal Declaration of Human Rights, adopted
by the UN General Assembly on December 10, 1948.[1385] The
declaration is perhaps one amongst a privileged set of international
instruments that have received unanimous approval, without so much as one
dissenting vote, although there were a couple of abstentions.[1386] Though
the declaration is not a legally enforceable instrument, and certain rights
mentioned are not quite legal rules, the declaration is a rather important
hallmark in the evolution of human rights law, and has now come to mean a
rather important document for having codified several general principles of
law, representing certain fundamental and elementary considerations of
humanity.[1387] Despite not being legally binding, so to speak, the
declaration has gained quite a bit of authority as a generic guide of
fundamental rights and freedoms for signatory states in respect of their
people, and has also been accorded quite an iconic status as a precedential
document for subsequent documents on human rights. The rights broadly take
the form of civil and political rights, as one category, and economic, social
and cultural rights as another category.
The civil and political rights cater to prohibiting slavery, inhuman treatment,
arbitrary arrest and arbitrary interference with privacy and discrimination
on grounds of race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status. They also
accord the right to a fair trial, freedom of movement, freedom of residence,
the right to seek political asylum, the right to possess and change nationality,
the right to marry, the right to own property, freedom of belief and worship,
right to opinion and expression, freedom of peaceful assembly and
association, free elections and equal opportunities for access to public
positions. The economic, social and cultural rights include the right to
social security, the right to full employment, fair conditions of work,
adequate standards of living, education and participation in the cultural life
of the community. While at the inception, the Universal Declaration merely
mentioned a series of rights that the state members pledge to promote, today,
many of those rights have evolved into norms of jus cogens and principles
of erga omnes nature.[1388] The declaration does not have a binding effect
by itself, but has had a rather tangible impact on the constitutions of different
states and upon resolutions, conventions and treaties in the field of human
rights. The Proclamation of Tehran, 1968, emanating at the end of the UN
sponsored International Conference on Human Rights, asserted that the
Declaration constituted an obligation for members of the international
community as a whole, to follow and implement.[1389] Jurisprudence, both
of national and international nature has also applied the contents of the
373

declaration in determining several disputes.[1390] Though it was initially

intended to make the declaration concrete with the promulgation of a
binding universal convention on human rights, the process took a
considerable amount of time to fructify. Nevertheless, the international
community used the intervening period to address certain specific issues
through conventions devoted to the cause.
The 1966 Covenants
After twelve years of deliberation and discussion, on December 16, 1966,
the United Nations finished drafting two specific conventions devoted to
giving the 1948 Declaration teeth, namely, the International Convention on
Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights.[1391] The covenants came into force in 1976,
and have since garnered as many as 174 state members, with 8 states are
still to ratify the treaty.[1392] The Covenants largely echo the 1948
declaration in terms of the rights they provide. Although both covenants
offer implementation machinery and monitoring systems, practice has
revealed that they are rather weak.
International Covenant on Civil and Political
Rights
The International Covenant on Civil and Political Rights, 1966, under
Article 1 recognizes the right of all people to self-determination, as
inclusive of the right to freely determine their political status, to pursue their
economic, social and cultural goals, and to manage and dispose off their
own resources. The article also enunciates a negative right of a people not
to be deprived of its means of subsistence, and also imposes an obligation
on the same parties that are responsible for non-self-governing and trust
territories, to encourage and respect their self-determination. The second
part of the covenant houses articles 2 to 5, which indicate that state parties
are to legislate wherever necessary, in order to give effect to the rights
recognized under the Covenant, and to provide an effective legal remedy for
the violation of these rights.[1393] The rights are to be recognized without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status,[1394] and to ensure that they are equally enjoyed by women.[1395]
Article 4 mandates that the rights can be limited only in time of public
emergency, which threatens the life of the nation, and even then, no
derogation is permitted from the rights to life, freedom from torture and
slavery, the freedom from retrospective legislation, the right to personhood,
the freedom of thought, conscience and religion. Part 3 includes articles 6 to
374

27, which include the right to physical integrity, in the form of the right to
life and freedom from torture and slavery as under Articles 6, 7 and 8;
liberty and security of the person, by freedom from arbitrary arrest and
detention and the right to a habeas corpus, as under Articles 9 to 11;
procedural fairness in the legal set up, in the form of the rights to due
process, a fair and impartial trial, the presumption of innocence and
recognition as a person before the law as under Articles 14, 15 and 16;
individual liberty in the form of the freedom of thought, conscience,
movement, religion, speech, association and assembly, family rights, the
right to nationality and privacy, as under Articles 12, 13, 17 to 24;
prohibition of war propaganda and any advocacy of national or religious
hatred constituting an incitement to discrimination, hostility or violence by
law as under Article 20; the right to political participation, including the
right to join a political party and to exercise the right to vote, as under
Article 25, and the rights of non-discrimination, minority rights and equality
before the law as under Articles 26 and 27. Part 4 contains Articles 28 to
45, which govern the establishment and operation of the Human Rights
Committee, while Part 5 comprises Articles 46 and 47 which clarify that the
Covenant shall not be interpreted as interfering with the operation of the
United Nations or the inherent right of all peoples to enjoy and utilize fully
and freely their wealth and resources. Lastly, part 6 comprises articles 48 to
53, which govern the procedural and perfunctory aspects of ratification,
entry into force and the amendment of the Covenant.
The Covenant also has two Optional Protocols, of which the first
establishes an individual complaints mechanism, allowing individuals to
complain to the Human Rights Committee in pertinence to violations of the
Covenant, which has resulted in considerable development and evolution of
jurisprudence dealing with the interpretative aspects of the covenant and its
provisions. There are 113 state parties to the First Optional Protocol. The
Second Optional Protocol exclusively deals with the abolition of the death
penalty. By the protocol, member countries are accorded the freedom to
make a reservation allowing the use of the death penalty only in the event
that there are serious crimes of a military nature committed during wartime.
The Protocol has 72 signatories.
Several state parties have also made reservations and interpretative
declarations to their application of the Covenant. Argentina has sought to
apply the fair trial rights guaranteed in its constitution to the prosecution of
those accused of violating the general law of nations.[1396] Australia has
reserved the right to progressively implement the prison standards of
Article 10, to compensate for miscarriages of justice by administrative
375

means, as opposed to going through the courts, and also has sought to
interpret the prohibition on racial incitement as being subject to the
freedoms of expression, association and assembly, and seeks to declare that
its implementation procedure will be accorded effect at each level of its
federal set up.[1397] Austria has reserved the right to continue exiling
members of the House of Habsburg, and the limits the rights of accused
people, and the right to a fair trial to those already existing in its legal
realm.[1398] The Bahamas reserved the right not to compensate for
miscarriages of justice, owing to problems with implementation; Bahrain
has sought to interpret Articles 3, 18 and 23 in keeping with Islamic Sharia
Law; Bangladesh has reserved the right to try people in absentia, when they
are fugitives from justice, and has also declared that resource constraints
imply that it cannot necessarily segregate prisons or provide counsel for
accused people; Barbados has reserved the right not to provide free counsel
for accused people, due to resource constraints.[1399] Belgium has sought
to interpret the freedoms of speech, assembly and association in a manner
akin to the European Convention on Human Rights, and does not consider
itself under an obligation to impose a ban on war propaganda, and interprets
article 20 as falling within the ambit of the freedom of expression as under
the Universal Declaration of Human Rights.[1400] Finally, the United States
has made reservations that no article should abridge or restrict the freedom
of speech and association, and that it may well impose capital punishment
on any person aside of a pregnant woman, people below 18 years of age,
and also asserts that cruel, inhuman and degrading treatment or punishment
shall refer to those prohibited by its Fifth, Eighth and Fourteenth
Amendments to the US Constitution. In addition, it has made reservations
that Article 15 shall not apply, and that its government may treat juveniles as
adults and accept volunteers to the military before 18 years of age.
The International Covenant on Economic, Social and
Cultural Rights
The International Covenant on Economic, Social and Cultural Rights has its
roots in the same process that led to the creation of the Universal
Declaration of Human Rights. The Covenant follows the structure and
direction of the Universal Declaration and the International Covenant on
Civil and Political Rights. It contains 31 articles, divided into five parts.
Part 1 contains Article 1, which like the International Covenant on Civil and
Political Rights, also enunciates and recognizes the right to selfdetermination, as inclusive of the right to freely determine their political
status, to pursue their economic, social and cultural goals, and to manage
376

and dispose off their own resources. Part 2 comprises Articles 2 to 5, which
establish the principle of progressive realization. Article 2 purports that the
rights be recognized without discrimination of any kind, as to race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. Article 4 holds that the rights can only be
limited by law, in a manner in keeping with the nature of the rights, and only
for the purpose of promoting the general welfare in a democratic society.
Part 3 speaks of Articles 6 to 15, which list rights such as the right to work
under just and favourable conditions with the right to form and join trade
unions as under Articles 6, 7, and 8; the right to social security including
social insurance as under Article 9; the right to family life, including paid
parental leave and the protection of children as under Article 10; the right to
an adequate standard of living including the right to adequate food, clothing
and housing, and the continuous improvement of living conditions as under
Article 11; the right to health, specifically of the order of the highest
attainable standard of physical and mental health as under Article 12; the
right to education, including free, universal primary education directed
towards the full development of the human personality and the sense of its
dignity and to enable all persons to participate effectively in society as
under Articles 13 and 14, and finally, the participation in cultural life as
under Article 15. Part 4 comprises Articles 16 to 25, which govern the
reporting and monitoring of the Covenant and the steps taken by parties to
implement it, and also allow the monitoring body, i.e., the Committee on
Economic and Social Cultural Rights to prepare certain general
recommendations to the UN General Assembly on appropriate measures to
realize the rights so accorded as under Article 21. Further, Part 5, which
comprises Articles 26 to 31, govern the ratification, entry into force and
amendment of the Covenant.
The Covenant is not free from reservations and interpretative declarations
to their application of the covenant. Algeria interprets parts of Article 13 as
protecting the liberty of parents to freely choose or establish suitable
educational institutions, so as not to impair its right to freely organize its
educational system.[1401] Bangladesh has interpreted the selfdetermination clause as under Article 1, as applying in the historical context
of colonialism, and reserves the right to interpret the labour rights in
Articles 7 and 8 and the non-discrimination clauses of Articles 2 and 3,
within the ambit of its constitutional and domestic laws.[1402] Belgium
interprets non-discrimination as to national origin, as not necessarily
implying an obligation on States automatically to guarantee to foreigners the
same rights as to their nationals. The term should be understood to refer to
377

the elimination of any arbitrary behaviour but not of differences in treatment

based on objective and reasonable considerations, in conformity with the
principles prevailing in democratic societies; China prohibits labour rights
in Article 8 in keeping with its constitution and domestic laws; Egypt
accepts the covenant and its provisions to the extent that it is consistent with
Islamic Sharia Law, France views the Covenant as subservient to the UN
Charter, and reserves the right to govern the access of aliens to employment,
social security and other benefits; while France views the Covenant as
subservient to the UN Charter, and reserves the right to govern the access of
aliens to employment, social security and other benefits; while India
interprets the right of self-determination as applying only to the people
under foreign domination, and not to apply to people within sovereign
nation-states, and also interprets the limitation of rights clause and the rights
of equal opportunity.[1403] Indonesia interprets the self-determination
clause as falling under other international law and not applying to people
within a sovereign state, while Ireland reserves the right to promote Irish as
a language; Japan reserves the right not to be bound to progressively
introduce free secondary and higher education, and Kuwait interprets nondiscrimination clauses of Articles 2 and 3 within its constitution laws and
reserves the right to social security to apply only to Kuwaitis and also
reserves the right to forbid strikes.[1404] Mexico interprets labour rights
under Article 8 in keeping with its constitution, while Monaco interprets
non-discrimination as not necessarily implying an automatic obligation on
the part of States to guarantee foreigners the same rights as their nationals
and reserves the right to set residence requirements on the right to work,
health, education and social security.[1405] New Zealand has reserved the
right to strike to allow compulsory arbitration of labour disputes; Pakistan
has a general reservation allowing itself to interpret the covenant within the
framework of its constitution; Thailand interprets the right to selfdetermination within the ambit of international law; Trinidad and Tobago
reserves the right to strike for those engaged in essential occupations;
Turkey seeks to reserve the right to interpret and implement the right of
parents to choose and establish educational institutions in keeping with its
constitution; the United Kingdom perceives the covenant as being
subservient to the UN Charter.[1406]
The Covenant also has an Optional Protocol, which functions as a means to
allow parties to the Covenant to consider complaints from individuals.
Adopted by the UN General Assembly on December 10, 2008, the Protocol
was open for signature on September 24, 2009, and has been signed by 35
states, and ratified by three so far. The Protocol shall enter into force after it
378

is ratified by 10 states, according to Article 18.

Other Conventions relating to Human Rights
The International legal system comprises of a huge weft of legal instruments
governing human rights, in principle. The Declaration on the Rights of the
Child, 1923, was the first instance of codifying human rights. The first draft
was prepared by Eglantyne Jebb, and was adopted by the International Save
the Children Union in Geneva, on February 23, 1923. It was subsequently
endorsed by the General Assembly of the League of Nations on November
26, 1924, as what was termed as the World Child Welfare Charter. The
Save the Children Union merged into the International Union of Child
Welfare in 1946, and sought for the United Nations to do the needful in
working for war-scarred children. The declaration comprised five
principles, holding that the child must be given the means requisite for its
normal development, both materially and spiritually; the child that is hungry
must be fed, the child that is sick must be nursed, the child that is backward
must be helped, the delinquent child must be reclaimed and the orphan and
the waif must be sheltered and succored; the child must be the first to
receive relief in times of distress; the child must be put in a position to earn
a livelihood and must be protected against every form of exploitation and
the child must be brought up in the consciousness that its talents must be
devoted to the service of its fellowmen. The declaration later gave way for
the Declaration of the Rights of the Child, 1959.
The 1948 Convention on the Prevention and Punishment of Genocide,[1407]
is the earliest among the lot, after the Second World War, having entered
into force on January 12, 1951, defines genocide in legal terms as any acts,
such as killing members of a group, causing serious bodily injury or mental
harm to members of the group, deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
or in part, imposing measures intended to prevent births within the group or
forcibly transferring children of the group to another group; committed with
the intention to destroy in whole or part, a national, ethnic, racial or
religious group. The Convention is a product of several years of
campaigning by Lawyer Raphael Lemkin, who coined the term with
reference to the Simele Massacre, the Holocaust and the Armenian
Genocide.[1408] State parties are under an obligation to prevent and punish
actions of genocide during war, and during peacetime. 140 states have
ratified the convention. Article 3 states that the convention punishes the
crimes of genocide, conspiracy to commit genocide, direct and public
incitement to genocide, attempts to commit genocide and complicity in
379

genocide. Originally passed to penalize acts on the lines of Nazi Germanys

persecution campaigns, the first ever draft of the convention comprised
political killings within its ambit. However, several states,[1409] did not
accept that actions against groups deemed as holding similar political
opinions or social status would constitute genocide. Despite the presence of
the convention, there have been instances of Genocide. The Rwandan
Genocide incident of 1994, involving Jean-Paul Akayesu, erstwhile mayor
of a small place in Rwanda, invoked the Genocide Convention, holding him
liable under nine counts of Genocide. Subsequently, the Prime Minister of
Rwanda in 1994, Jean Kambanda, was also convicted of Genocide.
Officially, the first State to be deemed in breach of the Genocide
Convention was Serbia,[1410]where Serbia was eventually cleared of the
charge of direct involvement in genocide during the Bosnian war by the ICJ,
but, eventually, Belgrade was deemed to have breached international law by
failing to prevent the 1995 Srebrenica genocide, and for failing to try the
accused, or transfer them to the International Criminal Tribunal for
Yugoslavia, in keeping with the duties under Articles I and VI of the
Genocide Convention, specifically pertaining to General Ratko Mladic.
The 1951 United Nations Convention Relating to the Status of Refugees
deals with the status, rights and issues pertaining to refugees. The
convention defines the term refugee, and sets out the rights of all those
individuals that are accorded asylum, and enumerates the responsibilities of
nations that grant asylum to refugees. The convention also prescribes
information to determine who do not qualify as refugees, and also accords
certain visa-free travel opportunities for holders of travel documents that
are issued under the convention. Originally confined to protecting European
refugees after the Second World War, the convention applied beyond its
initial scope with the 1967 Protocol, which removed the geographical and
time limits. The convention defines a refugee as being a person who, owing
to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable, or, owing to such fear, is
unwilling to avail himself of the protection of that country, or, who, not
having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it. States party to the convention, are under an
obligation to cooperate with the United Nations High Commission for
Refugees as under Article 35 of the Convention and Article II of the
Protocol. The parties to the convention also agree to inform the United
Nations Secretary General as regards the laws and regulations they may
380

adopt, in order to ensure the application of the Convention. The notion of

reciprocity has no application to the states that are parties to the convention,
whereby according to one states law, the granting of the right to an alien is
subject to the granting of similar treatment by the aliens state of nationality.
Since refugees do not enjoy protection from their home state, this doctrine
does not apply. A refugee is also accorded the right to be free from penalty,
as under Article 31 of the Convention. Further, the right against refoulement,
or forcible return, is also accorded protection under the 1951 Convention on
the Status of Refugees. This right is already part of customary international
law, which also implies that even if states are not party to the Convention,
they are bound by the obligation not to return refugees forcibly to their home
state. The UNHCR is permitted to intervene where this principle is found to
be violated.
Conventions working means to fight discrimination in different forms began
with the 1965 International Convention on the Elimination of All Forms of
Racial Discrimination. The Convention marked the onslaught of the secondgeneration human rights, as it devoted itself to weed out all forms of racial
discrimination. The convention seeks to accord a means to promote
understanding and harmony amongst all races, requiring parties to embark
upon policies outlawing any form of racial discrimination. Individual
complaints are entertained under the convention, and are also accorded
enforceability against the state parties. The convention has 174 state parties,
and 85 signatories. The implementation of the convention is monitored by
the Committee on the Elimination of Racial Discrimination. The Convention
came into play with the ghastly events of anti-semitism in different parts of
the world. The General Assembly adopted a resolution that condemned all
manifestations and practices of racial, religious and national hatred and
deemed them violations of the UN Charter and the Universal Declaration of
Human Rights, and called on state governments to take all measures
necessary to prevent all kinds of manifestations of racial, religious and
national hatred. Following the resolution, the Economic and Social Council
came up with a draft resolution on manifestations of racial prejudice and
national and religious intolerance, and called on governments to spread
awareness by educating their people, against intolerance, and to rescind all
their discriminatory laws. A year later, this resolution was passed by the
General Assembly, and the Declaration was adopted. Following this, the
draft convention was completed in 1964, and was adopted in 1965. The
Convention is divided into three parts. Part I, comprising Articles 1 to 7,
commits all the state parties to the elimination of racial discrimination, and
381

to promote understanding amongst all races as under Article 2, imposes a

specific commitment on states to eradicate racial segregation and apartheid
within their jurisdictions under Article 3, requires parties to criminalize the
incitement of racial hatred under Article 4, enumerates specific areas in
which discrimination must be eliminated under Article 5, requires states to
ensure judicial remedies for racial discrimination under Article 6 and
requires states to engage in public education to promote understanding and
tolerance under Article 7. Part II comprises Articles 8 to 16, and governs
the responsibility to report and monitor the Convention and the steps taken
by states to implement it within their domestic system. Part III contains
Articles 17 to 25, and deals with ratification, entry into force and the
amendment procedures pertaining to the Convention.
In 1973, the United Nations General Assembly opened for signature, and
ratification, the International Convention on the Suppression and Punishment
of the Crime of Apartheid. The convention defined the crime of apartheid as
being any inhuman acts committed for the purpose of establishing and
maintaining domination by one racial group of persons over any other racial
group of persons and systematically oppressing them. The Convention has
31 signatories, and 107 parties. The convention essentially declared
apartheid as a crime against humanity, and broadened the scope to extend
beyond South Africa. Etymologically, though Apartheid is primarily
associated with the racist policies of post-1948 South Africa, the term has
come to imply all racially based policies followed by and in, any state.
[1411] As many as seventy-six states subsequently signed the convention,
but several states have neither signed nor ratified the convention- such as
Australia, Canada, France, Germany, Israel, Italy, New Zealand, The
Netherlands, The United Kingdom and the United States.
In 1979, a Convention for women, named the Convention on the Elimination
of all Forms of Discrimination against Women was adopted by the UN
General Assembly. It is construed as the international bill of rights for
women, and came to force on September 3, 1981. The Convention asserts
that discrimination against women refers to any distinction, exclusion or
restriction made on the basis of sex, which has the effect or purpose of
imparting or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field. The Convention also
establishes an agenda for bringing sex-based discrimination to an end.
States are under an obligation to eliminate prejudices and customs based on
the notion of inferiority or superiority of one sex, or on stereotyped roles for
382

the sexes. All states that ratify the convention are under an obligation to
inculcate a sense of gender equality in their domestic legislation, and bring
to an end all discriminatory provisions in their legal realm. They are also
required to enact laws to safeguard their women against discrimination.
Measures to suppress traffic in women, exploitation and prostitution among
women, to accord right to education and equal scholarship opportunity to
women and to encourage coeducation, to establish tribunals and public
institutions to guarantee women effective protection against discrimination,
and take steps to do away with all forms of discrimination as practiced
against women, at all levels- individual, organizational and enterpriserelated.
The 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment is directed exclusively to prohibiting
any form of torture, cruel or inhuman treatment or punishment. The
convention hinges on assurance from states that they shall take all effective
measures to prevent torture within their domestic expanse, and also
prohibits states to return people to their home states if there is sufficient
cause to believe that they shall suffer the brunt of torture. In commemoration
of the conventions date of entering into force, June 26 is recognized and
celebrated as the International Day in Support of Torture Victims. With 147
state parties as its members, the obligation to deter from embarking upon
torture in conduct and penalty, as spoken of in the convention, has attained
the status of jus cogens. The entire convention is divided into three parts.
Part I comprises Articles 1 to 16. Under this part, states are committed to
taking effective measures to prevent torture in its territorial jurisdiction
under Article 2. Article 4 requires states to ensure that torture is a criminal
offense, and jurisdictional rights are established over torture committed by
or against a states citizens under Article 5. Torture is deemed an
extraditable offense under Article 8, and universal jurisdiction is
established to try cases of torture where an alleged torturer cannot be
extradited, as under Article 5. States are under an obligation to promptly
investigate allegations of torture as per Articles 12 and 13, and torture
victims are to be accorded an enforceable right to compensation. States are
also obligated to ban the deployment of evidence procured by torture in
their courts as under Article 15, and are also prevented from deporting,
extraditing and refouling people where there are sufficient grounds for
believing they will be tortured as under Article 3. Article 16 mandates that
states are under an obligation to prevent other acts of cruel, inhuman or
degrading treatment or punishment, and to investigate any allegation of such
treatment within their jurisdictional expanse. Part II of the Convention
383

comprises Articles 17 to 24, and governs reporting and monitoring of the

Convention and its implementation. The Committee against Torture is
established under Article 17. The Committee, under Article 20, is
empowered to investigate allegations of systematic torture, and also works
towards establishing an optional dispute-resolution mechanism between
parties as under Article 21. Parties are accorded the right to recognize the
competence of the Committee to hear complaints from individuals in
pertinence to violations of the Convention by a party as under Article 22.
Part III includes Articles 25 to Article 33, governing ratification, entry into
force, amendment of the Convention and related perfunctory requirements. It
also includes an optional arbitration mechanism in order to resolve disputes
between parties as under Article 30. In 2002, an Optional Protocol to the
Convention was adopted by the General Assembly, which provides for the
establishment of a system of regular visits undertaken by independent
international and national bodies to places where people are deprived of
their liberty in order to prevent torture and other similar treatment or
punishment, to be overseen by a Subcommittee on Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
In 1989, the Indigenous and Tribal Peoples Convention, an ILO Conventionalso known as C169- came into place. It is a rather major instrument, and
binds all states that are party to it.
In 1990, the United Nations Convention on the Rights of the Child was
adopted. The convention functions as a means to set out the civil, political,
social, economic and cultural rights of children world over. The convention
defines a child, for the purpose of its operation, as being any human being
below the age of eighteen, unless an earlier age of majority is accorded
recognition by any state. The Convention establishes its own compliance
monitoring entity, namely, the Committee on the Rights of the Child,
comprising members from different states around the world. The committee
otherwise functions to send reports on an annual basis to the UN General
Assembly, along with a statement from the chairperson of the Committee on
the Rights of the Child, after which the UN General Assembly adopts a
resolution relating to the rights of children. In addition, there are two
optional protocols to the convention, adopted in May, 2000. The first
protocol relates to the restriction imposed on involving children in military
conflicts, and the second protocol prohibits the sale of children, child
prostitution and child pornography. The Convention fundamentally speaks of
child rights, and requires that states act in the best interests of the child. The
implementation of the Convention has often showed the need for revamping
of domestic laws pertaining to custody and guardianship laws. Recognizing
384

that each child is entitled to basic rights, inclusive of the right to life,
identity, to be raised by his parents within his own familial or cultural
grouping, and to have a relationship with both parents even if they are
separated, the convention also allows parents to exercise and pursue their
parental responsibilities. The convention recognizes the fact that children
have the right to express their opinions and also have a right to have those
opinions heard, and operated upon whenever appropriate. Children are to
be protected from abuse and exploitation, and have their right to privacy,
which also requires that their lives shall be free from excessive
interference. States are under an obligation to accord separate legal
representation for a child in any judicial dispute, concerning their care, and
also requires that the childs point of view be accorded hearing in all such
instances. Capital punishment cannot be imposed on a child. Children are to
be protected from physical and mental violence, and article 19 mandates
that the state parties should take all legislative, administrative, social and
educational measures to ensure such protection. With a strong membership
of 193 states, the convention has all members of the UN as its parties,
excepting the United States of America and Somalia.
In the same year, the United Nations International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families came into play, paving the way to govern and protect migrant
workers and their families. Though adopted and signed in 1990, the
convention officially came into force only in 2003, after it attained the
threshold of 20 ratifying state parties. The Convention and its
implementation are monitored by the Committee on Migrant Workers. The
idea behind the convention is the need to respect and foster human rights of
migrant workers, and therefore, the key provisions include the guarantee of
equality of treatment and equal working conditions for both, migrants and
nationals. The Convention mandates that there needs to be a minimum
degree of protection for migrant workers, and also recognizes that legal
migrant workers are vested with the legitimacy and right to claim more
rights as opposed to undocumented migrants, but at the same time asserts
that even undocumented migrants have the right to enjoy their fundamental
human rights. The convention requires that enough action be taken to avert
clandestine movements of workers, by specifically fighting all channels of
misleading information inducing migration, and by imposing sanctions upon
those indulging in trafficking and those employing undocumented migrants.
In 1993, the Vienna Declaration and Programme of Action, often called the
VDPA, was adopted by a consensus at the World Conference on Human
Rights on June 25, 1993 in Vienna, Austria. The Declaration created the
385

office of the United Nations High Commissioner for Human Rights, and the
General Assembly of the United Nations by way of Resolution 48/121. The
VDPA reaffirmed the Universal Declaration of Human Rights and the UN
Charter. The VDPA is a reflection on the fact that the World Conference on
Human Rights marked the end of the Cold War. It fundamentally seeks to
reaffirm human rights as a universal and relevant standard for all states to
adhere to. Part I, paragraph 5 establishes that all human rights bear equal
importance, and seek to end the qualitative division between civil and
political rights, and economic, social and cultural rights. Part I, paragraph 8
asserts that Democracy, development and respect for human rights and
fundamental freedoms are interdependent and mutually reinforcing. The
VDPA also makes a direct link between poverty and the realization of
human rights under Part I, paragraph 14. Further, it also reaffirms the right to
development under Part I, paragraph 9, which has been deemed
controversial by some human rights scholars and UN member states. The
VDPA also reaffirms, under Part I, paragraph 23, the right to seek asylum.
Under Part II, paragraph 20, the VDPA urges governments to take immediate
measures and to develop strong policies to prevent and combat all forms
and manifestation of racism, xenophobia, or related intolerance, where
necessary by enactment of appropriate legislation, including penal
measures, and also appeals to all State parties to the International
Convention on the Elimination of All Forms of Racial Discrimination to
consider making the declaration under article 14 of the Convention. The
VDPA also records provisions protecting indigenous people, rights of
migrant workers, womens rights, rights of the disabled and the rights of the
child. Aside of these issues, freedom from torture and enforced
disappearances. Human Rights is accorded the status of falling within the
ambit of the responsibility of the State, and states are accordingly required
to educate their people of the rights they have. Governments are also
encouraged to incorporate, implement and monitor methods used to
implement human rights within their domestic setting.
In 2006, the Convention on the Rights of Persons with Disabilities was
adopted by the UN General Assembly, whereby the rights and dignity of
people with disabilities were sought to be protected. As a mandate, state
parties are under an obligation to protect, ensure, promote and uphold the
rights and dignity of people with disabilities, and ensure that they enjoy full
equality under the law. The purpose of the convention is contained under
Article 1, which states that the convention seeks to promote, protect and
ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all people with disabilities, and to promote respect for their
386

inherent dignity. Articles 2 and 3 are the definition clauses, which speak of
general principles and terms used in the convention. The key rights of
persons with disabilities are contained under Articles 4 to 32, most of
which mirror rights that are found under other human rights conventions and
declarations of the United Nations. However, the Convention also mentions
some specific rights for the disabled, outlining the right to accessibility and
information technology, the right to live independently and be included in
the community under Article 19, to personal mobility under Article 20,
habilitation and rehabilitation under Article 26, and to participation in
political, cultural, recreational and public life. Articles 33 to 39 govern the
reporting and monitoring of the convention, while Articles 40 to 50 govern
ratification, entry into force, and amendment of the Convention.
The same year marked the birth of the International Convention for the
Protection of All Persons from Enforced Disappearance, which strives to
prevent forced disappearances. The Convention formally entered into force
in 2010, with 87 states having signed the convention, and 21 states having
ratified or acceded to it. The Convention is largely modeled on the 1984
Torture Convention, and defines enforced disappearance under Article 2 as
being the arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law. Article 1 of the Convention emphatically
establishes that no exceptional circumstances, whatsoever, whether a state
of war or a threat of war, internal political instability or any other public
emergency, may be invoked as a justification for enforced disappearance.
Widespread and systematic use of enforced disappearance is deemed a
crime against humanity as under Article 6. The convention requires that state
parties undertake to investigate acts of enforced disappearance and bring
those responsible to justice, to ensure that enforced disappearance
constitutes an offence under the ambit of their criminal laws, to establish
jurisdiction over the offence of enforced disappearance when the alleged
offender is within their territory, even if they are not a citizen or a resident,
to cooperate with other states in ensuring that offenders are prosecuted or
extradited and to assist victims of enforced disappearance or locate and
return their remains, to respect minimum legal standards around the
deprivation of liberty, including the right for imprisonment to be challenged
before the courts, to establish a register of those currently imprisoned and to
allow it to be inspected by the relatives and counsel of the imprisoned, and
387

to ensure that victims of enforced disappearances or those directly affected

by it have a right to seek and obtain reparation and compensation. The
Convention shall be governed by a Committee on Enforced Disappearances,
comprising members elected by its parties, and states are under an
obligation to report to the committee on all the steps taken by them to
implement the convention and its contents within two years of becoming
privy to it.
The rights of indigenous peoples were safeguarded by the United Nations, in
the course of its Declaration on the Rights of Indigenous Peoples, adopted in
the 62 Session of the UN General Assembly, on September 13, 2007. The
declaration sets an important standard for the treatment of indigenous
peoples, which would function as a significant tool towards the elimination
of human rights violations against the planets 370 million indigenous
people and assisting them in combating discrimination and marginalization.
[1412] The declaration lays down both, individual and collective rights of
indigenous peoples, and their rights to culture, identity, language,
employment, health, education and other issues. It asserts the rights of
indigenous people to maintain and strengthen their own institutions, cultures
and traditions, and to pursue their development in keeping with their needs
and aspirations, and also prohibits discrimination against indigenous
peoples. The declaration seeks to promote their full and effective
participation in all matters concerning them, and their right to remain
distinct and to pursue their own visions of economic and social
development.
The Executive Realm
Couched within the ambit of the UN system, are a series of bodies active in
the field of human rights. Article 13 of the UN Charter holds that the
General Assembly is allowed to initiate studies and make recommendations
on human rights issues. In relation to this, the Economic and Social Council,
comprising 54 members elected by the General Assembly, for overlapping
three year terms. The Economic and Social Council, as under Article 62 is
permitted to make recommendations on human rights, draft conventions and
convene international human rights conferences. The Council functions on
reports that are sourced from different bodies world over. A subsidiary
body to the Economic and Social Council was constituted in 1946,
comprising of fifty-three members based on geographical distribution. The
aim of the creation was to ensure that there would be an entity to carry out
research and to draft treaties implementing the rules in need to quell human
rights violations. The idea was to create a means to pursue and implement
nd

388

the ideals couched in articles 55 and 56 of the Charter. In pursuit of its

objectives, the commission did plenty of noteworthy work. In Southern
Africa, in 1967, the Economic and Social Council, by way of a resolution,
empowered the commission to examine information relevant to gross
violations of human rights and to study situations which reveal a consistent
pattern of violations of human rights.[1413] Subsequently, plenty of
resolutions came into place with the Economic and Social Council working
a means to quell human rights violations.[1414]
The two 1966 covenants also install their own machinery pertaining to
monitoring and implementing human rights. The International Covenant on
Civil and Political Rights establishes a Human Rights Committee,
comprising 18 members elected by member states.[1415] The 18 members
are elected in their individual capacity, and do not represent their
governments, which is where the committee differs from the Human Rights
Commission of the UN. Article 40 of the International Covenant on Civil
and Political Rights establishes a compulsory reporting mechanism under
the Covenant, which mandates that member states are to submit reports on
their national human rights situation, every five years.[1416] The Committee
then undertakes a study and analysis of the report, and may seek additional
information. Sometimes, relying on the optional procedure explained under
Article 41, states are free to grant other states the right to bring in a
complaint against them before the Committee, in pertinence to any allegation
of violation of human rights. It is essential that both states accept the
procedural obligation, and also that all local remedies be exhausted prior to
availing this option. Many a time, it has been noted that the procedure itself
lacks teeth, as it has been found to result only in conciliation which holds no
binding value, whatsoever.
As for the International Covenant on Economic, Social and Cultural Rights,
only a reporting mechanism is installed in place. The covenant does not
provide for inter-state complaints, or individual petitions. Initial reports
were examined by a Working Group established by the Economic and
Social Council, comprising fifteen members amongst a cache of government
representatives. After 1987, the Committee on Economic, Social and
Cultural Rights of as many as eighteen independent experts, responsible to
the Economic and Social Council, came into place.[1417] The Committee
dealt with the duty of preparing General Comments and exchanging general
views on particular rights in the Covenant. The rights under the International
Covenant on Economic, Social and Cultural Rights are not directly binding
obligations for the state to cater to, but are deemed plans of actions to be
embarked upon based on the states resources and general economic
389

conditions. In many ways, one can conclude that the Legal nature of the
obligations have been largely diluted, to the point that the rights are merely
a direction for the states to follow.
Plenty of other conventions exist, each with their own monitoring bodies
and implementing authorities. The Committee on the Elimination of Racial
Discrimination monitors the Convention on Elimination of Racial
Discrimination and conducts periodic reviews of state performances, and
also passes judgments on complaints against states that allow it to do so, but
none of the decisions are legally binding. The Committee is also
instrumental in issuing warnings to prevent serious violations of the
convention. The Committee on the Elimination of Discrimination against
Women monitors the Convention on the Elimination of Discrimination
against Women. The Committee receives reports from states, on their
performance, and offers commentaries on them. The committee can also
make judgments on the complaints against other states, which opt into the
1999 Optional Protocol. The Committee against Torture works to deal with
the implementation of the 1984 Torture Convention, and receives reports
from states on their performance, periodically every four years, and offers
comments on them. The committee also has a sub-committee, which may
choose to visit and inspect countries that have opted into the Optional
Protocol. The Committee on the Rights of the Child monitors the Convention
on the Rights of the Child, and accepts, assesses and comments on reports
submitted by states every five years. It does not receive complaints,
however. The Committee on Migrant Workers, established in 2004,
monitors the implementation of the International Convention on the Rights of
Migrant Workers, and also accepts, assesses and comments on reports
submitted by the states every five years. The convention accords the
committee the power to accept complaints of specific violations, but this is
conditional upon the consensual allowance of ten member states of the
same. The Committee on the Rights of Persons with Disabilities, established
in 2008, monitors the Convention on the Rights of Persons with Disabilities.
The committee receives complaints against the countries which have opted
into the Optional Protocol. Each of these treaty bodies receive support of
secretarial nature, from the Human Rights Council, and the Treaties
Division of the Office of the High Commissioner on Human Rights
(OHCHR) in Geneva, except the Committee on Elimination of
Discrimination against Women, which receives support from the Division
for the Advancement of Women.
The Judicial Realm
390

Though the International Court of Justice essentially hears cases between

states, and individuals do not have direct access to the ICJ for any dispute,
whatsoever, there has still been a rather tangible impact upon the world of
Human Rights, by the ICJ and its settlement of disputes. Prior to the
International Court of Justice, the League of Nations judicial wing, the
Permanent Court of International Justice existed. Between both forums, there
have been quite a few significant decisions contributing to the world of
human rights law and jurisprudence. Conceptually, though Human Rights
law is couched in the principles of domestic jurisdiction, in practice,
domestic jurisdiction has not quite been an absolute facet. Nevertheless, one
cannot ignore the obstacle in the form of national sovereignty, in the path of
enforcement of human rights. In reality, the ICH is neither a human rights
court, nor one that only champions human rights out of many other issues
under international law, in the truest sense of the term.
Nevertheless, one cannot rule out the fact that in a couple of decisions,
human rights values have been accorded a greater weightage as opposed to
other issues. In two cases pertaining to consular notification,[1418] the ICJ
indicated that the issue bearing most relevance to the court boiled down to
the fact that convicted people in both cases faced capital punishment. The
ICJ has had a rather significant role to play in enforcing the UN based
human rights machinery. Advisory opinions[1419] by the ICJ have noted that
Special Rapporteurs bearing responsibilities pertaining to Human Rights
mandates for the ECOSOCs human rights bodies, are to be given the
privileges and immunities as are given to UN Experts on Missions, under
the ambit of the Convention on Privileges and Immunities, 1963. In these
opinions, it was also held that Special Rapporteurs are under an obligation
to assert the same privileges and immunities against their own governments.
However, there have been times where the ICJ has not quite accepted the
human rights angle as being the right path. In the Legality of the Threat or
Use of Nuclear Weapons,[1420] the key submission was that the use of
nuclear weapons would prove to be antagonistic to the right to life, and the
allied right not to be arbitrarily deprived of the right to life, as under Article
6 of the International Covenant on Civil and Political Rights. However, the
argument was rejected, as the Court recognized that though the right under
Article 6 did exist and apply during wartime, it is necessary to determine
what is arbitrary only by applying the relevant brand of law, i.e., the law of
armed conflict. Similarly, in the La Grand Case,[1421] the ICJ declined to
deal with the question as to whether the Convention on Diplomatic
Immunities conferred individual rights that could be viewed as human rights
391

or not. The Court asserted that though the Convention did indeed accord
individual rights, there was no need to determine if they bore overtones of
human rights, or otherwise.
The international protection of human rights has come a long way since its
original, piecemeal structure back at the inception. The UN Charter, as
depicted by the travaux preparatories, has not attached importance to the
maintenance of international peace and security, but definitely paved the
way for the evolution of several conventions and declarations, which have
in turn fuelled plenty of occasions for the evolution of jurisprudence. The
formal recognition of the basic rights of the human person, as noted in the
Barcelona Traction Case,[1422] came into existence after the 1948
Universal Declaration on Human Rights, which paved the way towards the
recognition of rights such as the protection from slavery, racial
discrimination or genocide, as erga omnes obligations.
The question of reservations to human rights treaties has been most oft
discussed at the ICJ. In the Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide,[1423] an
advisory opinion was tendered, establishing that while the object and
purpose of a treaty should be borne in mind, both, by those making the
reservations and those objecting to reservations made, everything in the
final analysis is left to the states involved, themselves. In the recent Congo
v. Rwanda decision,[1424] the impact of Rwandas reservation to the
Genocide Convention was the crux of the discussion and debate in the ICJ.
In deciding the case, the ICJ concluded that the object and purpose of the
convention did not oust the reservation made by Rwanda to the convention.
One of the most often tackled human rights issue internationally has been the
case of Genocide. The ICJ, in Case Concerning Application of the
Convention on the Prevention and Punishment of the Crime of
Genocide,[1425] had to deal with the allegations at the Bosnian end, that
Yugoslavia had violated the Genocide Convention. The ICJ asserted that
Article IX of the Convention had accorded a valid jurisdictional basis, and
reaffirmed its view in the earlier Advisory Opinion on the question of
Reservations to the Genocide Convention,[1426] that the crime of
genocide virtually shocks the conscience of mankind, and results in
devastating losses to mankind, and is contrary to moral law and to the spirit
and aims of the UN. Both states were called upon by the ICJ not to embark
upon any action that may just aggravate the dispute over the penalty for the
crime of genocide. Yugoslavia was directed to take all necessary steps
within its power, to avert the commission of genocide, and was also
392

ordered to ensure that all military, paramilitary and irregular armed units
which may either be directed or supported by it, and organizations and
people subject to its control, direction and influence, stay away from
committing acts of Genocide.[1427] In deciding the case, the ICJ pointed
out that the purpose of classifying genocide as a crime under the ambit of
international law was solely to prohibit states from committing the offence
through the organs, people and groups whose actions are attributable to
them. In dissecting the crime itself, the ICJ mentioned that the intention of
the perpetrator, a criterion couched at the very heart of the offence itself,
should be such that he wishes to destroy the group, in whole or in part. It is
also necessary that the group spoken of, should have either national,
ethnical, racial or religious tags, and that the genocide itself is being
perpetrated in pursuance of antagonism directed at such a tag. Therefore, the
destruction must be aimed at people bearing such a tag of identity, in a bid
to destroy them in whole or in part. In this background, the Court noted that
the Convention sought to create a distinct duty to prevent genocide, which
was both normative and compelling, and required an obligation of conduct
and not result, provided that the offence was actually committed.[1428]
Another area where the ICJs role cannot be emphasized enough is the
evolution of the Right to Self-Determination as a human right. Addressing
the issue in a spate of cases,[1429] the ICJ explained the concept at a time
where most world leaders, scholars and UN personnel perceived the right
as nothing more than political rhetoric. Starting with the Namibia case,
[1430] where the Court also declared that apartheid was illegal, and any act
of enforcing distinctions, exclusions, restrictions and limitations based on
race, colour, descent or national or ethnic origin amounted to a denial of
fundamental human rights, the notion of self-determination also gathered
momentum progressively. In the Western Sahara case,[1431] the ICJ
enunciated that the populace of the Western Sahara had the right to selfdetermination, i.e., the right to determine their political status by their own
freely expressed will.
Non-discrimination is another facet with which the ICJ has dabbled in.
From the days of the PCIJ, starting with the Polish Upper Silesia case,
[1432] the notion of protecting the minority, and according them equality in
both, fact and in law, and the claim of being a member of the minority is to
be determined purely by way of self-identification. The principle evolved
as one of the most important ones in the field of international law.
Subsequently, in the Minority Schools in Albania case,[1433] it was held
that the notion of equality under the law precludes discrimination of any
393

kind, while equality in fact may dabble with the obligation of rendering
different treatment, in a bid to arrive at a result that establishes equilibrium
between different situations.
Other freedoms and fundamental rights were not sidelined, however. In the
Advisory Opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory,[1434] the Court looked into
the restrictions on the right of the freedom of movement as under the ambit
of Article 12(3) of the International Covenant on Civil and Political Rights,
and required that as pointed out by the Human Rights Committee,
restrictions if any need to conform to the principle of proportionality.
Similarly, in Congo v. Uganda,[1435] the Democratic Republic of Congo
asserted the claim that in the course of its military intervention in Congo,
Uganda was responsible, among other things, for massacres of civilians,
torture, seizure of property and abduction and conscription of children.
Accordingly, after sufficient scrutiny of evidence, the court concluded that
Uganda was responsible for its acts and omissions, and also for the lack of
vigilance in preventing violations of human rights and humanitarian law by
other actors in the territory, which was under their control.
Human Rights at the Regional Level
Africa
Human rights in Africa are a considerably recent concept. With the United
Nations, the creation of the Human Rights Conventions and Declarations,
and the evolution of the African Union, there has been a considerably
tangible evolution of the application and practice of Human Rights in
Africa. Generally, however, the situation of human rights in Africa has been
reported to be poor, and is often deemed an area of grave concern by the
United Nations, and a couple of international non-governmental
organizations. Democracy has been a spreading phenomenon in Africa,
though not quite the majority of states follow democratic values. A spate of
Revolutions in the Middle East, between 2010 and 2011, have witnessed
three African States and many more joining the bandwagon, struggling and
succeeding in a battle for self-determination. Many states, though, in Africa,
have at least nominally accorded recognition to some of the most basic
human rights, although in practice many of these rights have not quite been
recognized. Plenty of human rights abuses have been known to plague parts
of Africa, attributable to either political instability or the dark after-effects
of war. The situation in Africa is overseen and monitored by the African
Commission on Human and Peoples Rights, an international body devoted
to supranational monitoring of the rights of the citizens of Africa.
394

In addition, the African Union is also devoted to studying and monitoring the
African realm. Comprising fifty three member states from the African
continent, the African Union aspires to help secure democracy, human rights
and sustainable economic structures for Africa, particularly concentrating
on bringing all forms of Intra-African conflict to a close.
The principle human rights instrument governing the region is the African
Charter on Human and Peoples Rights, which came into force under the
auspices of the Organization of African Unity, which has taken the place of
the African Union. The Charter, in keeping with its provision labeled
Article 63, asserts that it shall enter into force three months after the
reception by the Secretary General of the instruments of ratification or
adherence of a simple majority of the members of the Organization of
African Unity. The Charter came into force on October 21, 1986, a date that
is presently commemorated as the African Human Rights Day. The preamble
of the Charter depicts its commitment towards eliminating Zionism,
apartheid and colonialism. Most civil and political rights are recognized
under the Charter, such as the right to freedom from discrimination (Article
2 and 18(3)), equality (Article 3), life and personal integrity (Article 4),
dignity (Article 5), freedom from slavery (Article 5), freedom from cruel,
inhuman or degrading treatment or punishment (Article 5), rights to due
process concerning arrest and detention (Article 6), the right to a fair trial
(Article 7 and 25), freedom of religion (Article 8), freedom of information
and expression (Article 9), freedom of association (Article 10), freedom to
assembly (Article 11), freedom of movement (Article 12), freedom to
political participation (Article 13), and the right to property (Article 14).
Several scholars have professed their opinion on the inadequacy of the
Charter rights, especially since several rights have not been accorded
explicit mentioned. However, not many of these arguments stand to gain
importance, as the wording and thereby the scope and ambit of most of these
articles are wide enough to include those rights not explicitly mentioned.
Economic, Social and Cultural Rights are also given importance, including
rights such as the right to work (Article 15), the right to health (Article 16)
and the right to education (Article 17). Judicial activism, through the
decision in SERAC v. Nigeria,[1436] has ensured the right to housing and a
right to food. In addition, the Charter recognizes collective rights, better
known as group or peoples rights, such as family protection by the state
(Article 18), the right to equality (Article 19), the right to self-determination
(Article 20), the right to freely dispose of their wealth and national
resources (Article 21), the right to development (Article 22), the right to
peace and security (Article 23) and the right to a generally satisfactory
395

environment (Article 24). The Charter also includes duties incumbent upon
the people, such as those towards the family and state security, the duties to
pay taxes, to promote the achievement of African Unity (Article 29), and to
exercise ones rights and freedoms with due regards to the rights of others,
collective security, morality and common interest (Article 27).
The African Commission on Human and Peoples Rights is also a rather
important entity in dealing with Human Rights in Africa. Primarily a quasijudicial organ, the core responsibility of the entity includes promoting and
protecting human rights and collective rights, and also deals with
interpreting the African Charter on Human and Peoples Rights and
considers individual complaints of violations of the Charter and its
provisions. The Commission compulsorily has to collect documents,
undertake studies and research on African problems in the field of Human
and Peoples rights, organize seminars, symposia and conferences,
disseminate information, encourage national and local institutions concerned
with human and peoples rights, and, should the case arise, give its views or
make recommendations to governments under Article 45 of the Charter. The
Commission suggests provisional and interim measures wherever required.
[1437]
The Charter has also created the African Court on Human and Peoples
Rights, by way of a protocol which was adopted in 1998, and entered into
force in January 2004.[1438] The Commission is mandated to prepare cases
for the submission to the Courts jurisdiction. However, in 2004, the court
was intended to be integrated with the African Court of Justice, which is
intended to be the principal judicial organ of the African Union, as per
Article 2.2 of the Protocol of the Court of Justice of the African Union. The
protocol will come into force only upon the ratification of 15 states.
The charter receives special mention for having included the rights of selfdetermination, development and environment explicitly. In exercise,
however, variants have been drawn out, in a bid to assure compatibility
with sovereignty and territorial integrity of the concerned states.[1439] The
most creditable feature of the Banjul Charter lies in the fact that it is the first
human rights convention that details the duties of the individual to the state,
to the society, and to the smallest unit in society outside the individual
himself- the family.[1440]
Also worthy of mention is the Cairo Declaration on Human Rights in Islam.
Adopted in 1990 by the Nineteenth Islamic Conference of Foreign
Ministers, the declaration asserts that all rights and freedoms provided for
are subject to Islamic Shariah, as under Article 24, which is also the only
396

source of reference for the explanation or clarification of any of the articles

in the Declaration as explained under Article 25.
America
The Organization of American States is one of the key organs that deal with
human rights in the American regime, through its Inter-American
Commission on Human Rights, an autonomous wing, and the Inter-American
Court of Human Rights. The Inter-American Commission on Human Rights
is a permanent body that meets regularly, and through special sessions, to
examine human rights violations in the region.
The Inter-American Convention came into force in 1978, and comprises a
plethora of rights that are to be accorded to the people, and protected by
state parties.[1441] The preamble indicates that the purpose of the
Convention is to consolidate within the framework of democratic
institutions, a system of personal liberty and social justice, based on respect
for the essential rights of man. Chapter I speaks of the general obligation of
the states to uphold the rights set forth in the Convention under their
jurisdiction and to adapt their domestic laws to bring them into line with the
Convention. Article 1 requires an obligation to respect the rights to be
followed by the state signatories, and Article 2 elaborates upon the
domestic legal effects of the convention itself. Chapter II comprises a list of
individual civil and political rights, due to all persons, including the right to
Judicial personality (Article 3), right to life (Article 4), to humane treatment
(Article 5), freedom from slavery (Article 6), right to personal liberty
(Article 7), right to a fair trial (Article 8), freedom from Ex Post Facto
laws (Article 9), right to compensation (Article 10), right to privacy
(Article 11), freedom of conscience and religion (Article 12), freedom of
thought and expression (Article 13), right of reply (Article 14), freedom of
assembly (Article 15), freedom of association (Article 16), rights of the
family (Article 17), right to a name (Article 18), rights of the child (Article
19), right to nationality (Article 20), right to property (Article 21), freedom
of movement and residence (Article 22), right to participate in the
government (Article 23), right to equal protection (Article 24) and the right
to Judicial Protection (Article 25). Chapter III comprises a single article,
dealing the economic, social and cultural rights as are guaranteed to the
citizens. Chapter IV elaborates upon the circumstances in which rights are
capable of being suspended temporarily, such as in the event of any
emergency, and all formalities that are to be followed for the sake of such
suspension of rights to be valid. Chapter five speaks of the responsibilities
that are vested in each individual, as a necessary corollary to the rights
397

accorded. The remaining chapters relate to the administrative angle of the

Convention- where chapters six to nine speak of provisions dealing with the
creation and operation of two bodies responsible for overseeing the
compliance with the Convention, i.e., the Inter-American Commission and
the Inter-American Court. Chapter ten deals with ratification, amendment
and reservations and related matters. Transitory provisions are found under
Chapter eleven.
Subsequent to the enactment and operation of the Convention, state parties
have also buttressed its functioning with two protocols. The Additional
Protocol to the American Convention on Human Rights in the area of
Economic, Social and Cultural Rights, called the Protocol of San Salvador,
came into force in November 1999, after being adopted in November 1988.
The protocol seeks to take the American Human Rights system to higher
level by according the protection of the second generation human rights,
which take the form of economic, social and cultural spheres. The protocol
essentially deals with such rights as the right to work, the right to health, the
right to food and the right to education. A second protocol was adopted in
Paraguay in June 1990, formalizing the commitment to refrain from
deploying the death penalty during peacetime circumstances, and using it as
a punishment only in the case of the most serious crimes, allowing no
reinstatement once abolished, prohibiting it from being used for political
offences and common crimes, prohibiting its use against those aged below
18 and over 70 and pregnant women.
The Inter-American Commission on Human Rights comprises the system,
along with the Inter-American Court of Human Rights that deals with the
promotion and protection of human rights. It primarily receives, analyzes
and investigates petitions that allege violations of specific human rights as
protected by the Convention, and works to resolve all such petitions in a
way that is at best, amicable to both sides. The commission is devoted to the
task of monitoring the general situation pertaining to human rights in the
member states of the OAS, and also prepares and publishes reports of
country-specific nature. In a bid to spread awareness, the commission also
hosts conferences, seminars, symposia and meetings with governments, nongovernmental organizations and academic institutions to inform and raise
awareness about issues pertaining to the system itself. In addition, the
commission issues recommendations for members to adopt, in a bid to
further the cause of human rights protection, and also encourages member
states to do the needful to adopt precautionary measures to prevent serious
harm to human rights in urgent cases. Cases are referred to the InterAmerican Court of Human Rights, and the Commission litigates the cases
398

before the court, and also seeks advisory opinions on matters pertaining to
the interpretation of the Convention, when necessary, from the Court.
Petitions lodged with the Commission, as filed by States, individuals or
NGOs, are reviewed for admissibility, and the Commission tries to find an
amicable settlement. If no settlement is found, the Commission accords a
report based on briefs filed by both parties on the merits. If this doesnt
succeed either, the parties move on to the court. The Commission has
undertaken investigations in some significant cases, such as the Massacre of
Trujillo,[1442] where a series of murders were perpetrated in Colombia,
with the complicity of several members of the Colombian militia and
police. The Commission has dealt with certain specific issues under the
ambit of human rights, such as torture, refugees, disappearances and
economic and social rights.[1443] Ample efforts have been taken in a bid to
focus on children, women and indigenous people.[1444] The Commission is
also free to require and indicate states to adopt precautionary measures, and
may also ask for information from the interested parties, in relation to any
facet of adopting and observing precautionary measures.[1445] In pursuance
of this principle, the Commission granted precautionary measures in favour
of all individuals who were captured in connection with the US
spearheaded military operations against the erstwhile Taliban in
Afghanistan and the Al Qaeda, and the subsequent detention of captured
individuals in the naval base at Guantanamo Bay in Cuba. Starting out in
May 2002, the measures essentially required the United States of America
to take all necessary, urgent measures to determine the legal status of those
detained, by way of a competent tribunal, for devoid of the determination,
the fundamental human rights of the detainees may not quite be recognized
and guaranteed by the United States in their activities. The measures were
taken on four different occasions, and many a time, stressed upon the need to
release information pertaining to torture, cruelty and inhuman treatment of
detainees at Guantanamo Bay. The United States did not give effect to these
measures, as it claimed that the Commission did not have the jurisdiction to
impose the same. This led to the adoption of Resolution No. 2/06, dated
July 28, 206, where the Commission noted the failure on part of the United
States to give effect to the precautionary measures, and the consequential
damage and prejudice to fundamental rights of the detainees, and the
deprivation of the detainees rights to liberty and humane treatment. The
resolution urged the United States to close the Guantanamo Bay facility
without any delay, and to remove the detainees from the Bay through a
process orchestrated in keeping with all applicable forms of international
human rights and humanitarian laws, and to see to it that detainees facing the
399

risk of torture elsewhere are accorded free, fair and independent

examination of their situation, and to see to it that all cases of torture in the
Bay are subject to investigation, prosecution and penalty.[1446]
The Inter-American Court of Human Rights functions as the autonomous
judicial wing of the system, and serves to uphold and promote the basic
human rights and freedoms of people in the Americas. Primarily vested with
an adjudicatory responsibility, the court is required to rule on all cases
brought before it, in which a state party to the Convention that has accepted
its jurisdiction has been accused of a human rights violation. The Court
comprises seven judges, each serving in individual capacity following an
election of absolute majority of states party to the Convention, for a six year
term. Jurisdiction of the Court is subject to a prior declaration indicated
under Article 62, and Article 63(2) of the Convention allows the court to
adopt provisional measures that seem relevant, in the light of cases
involving extreme gravity, urgency and a need to avert irreparable damage
to people. If a case has not been submitted to the Court, the Court may well
act at the request of the commission, which has been done several times in
the past.[1447] In the course of exercising its contentious jurisdiction, the
Court hasnt attained too much success. In the Gallardo Case,[1448] the
Court held that a State could not dispense with the processing of a case by
the Commission, but in subsequent decisions as seen in the Velasquez
Rodriguez case,[1449] and the Godinez Cruz case,[1450] the Court held
that situations of disappearance as found occurring in the Honduras
amounted to a violation of the Convention. Peru was held responsible for
several breaches of the Convention, in connection with things such as
detention, deprivation of a fair trial and torture of the applicant who raised
the complaint in the first place.[1451] The Peruvian amnesty laws came
under the scanner in Chumbipuma Aguirre v. Peru,[1452] where the Court
asserted that the concerned amnesty laws were incompatible with the
Convention, and thus denounced them.
In addition, the court also performs an advisory function, by responding to
consultation requests as submitted by the OAS, seeking answers on
questions as to the interpretation of the Convention and related instruments
governing human rights in the Americas. Several important decisions have
been made on questions through advisory opinions. In the Definition of
Other Treaties Subject to the Interpretation of the Inter-American
Court case,[1453] the court decided that the object of the Convention was
to assure an integration of the regional and universal systems of human
rights protection, and as a consequence therefore, any human rights treaty to
400

which the American States were party, were easily capable of being
subjects of an advisory opinion. Similarly, in the Effect of Reservations
Case,[1454] it was held that human rights treaties essentially result in the
establishment of legal systems within the domestic realm, out of which
obligations are created towards all individuals within their jurisdictional
ambit. The Court also asserted that an instrument or ratification of
adherence comprising reservations compatible with the object and purpose
of the Convention, is not necessarily to be accepted by other parties, so the
instrument itself enters into force the moment there is a deposit. In dealing
with the question of freedom of expression, in the Licensing of Journalists
Case,[1455] the court advised against the compulsory licensing of
journalists, claiming that it was completely incompatible with Article 13 of
the Convention which accorded the freedom of expression, if it denied
people the access to the free and full use of the media as a means to
channelize and express its opinions. Noting that the freedom of expression
can only be restricted based on any compelling governmental interest, and
all restrictions imposed need to be closely tailored to accomplish the
legitimate governmental objective that necessitates it in the first place. In the
famous Habeas Corpus Case,[1456] the Court had declared that the writ of
a habeas corpus was a judicial guarantee for the protection of human rights,
that could not be suspended, and was one from which no derogation can be
permitted whatsoever, as under Article 27 of the Convention. In the
Interpretation of the American Declaration Case,[1457] the Court
studied the relationship between the American Declaration of the Rights of
Man, and its own existence, and went on to assert that the Court could very
well interpret the contents of the Declaration, given that it both, deals with
human rights and was a treaty. The right to consular assistance of detained
foreign nationals, as contained under Article 36, was held to constitute a
part of international human rights law.[1458]
On another occasion, the Court declared that the Commission has the
authority to determine whether the domestic legal system of a state party has
violated the obligations assumed in ratifying or acceding to the Convention,
and required the Commission to consequentially recommend that states
repeal or amend the law that is in violation of the Convention.[1459] In
pursuit of this, the Commission made a complete study of the laws of
contempt in 1994, and arrived at a conclusion that they did not meet the
standards laid down by international human rights. Accordingly, member
states were required to revamp their legal systems by either repealing or
amending the extant systems, to bring them in tandem with international
401

standards, and in line with all obligations arising out of those instruments, in
order to harmonize their laws with human rights treaties.[1460]
Asia
Human Rights in Asia relies largely on the protection accorded by
individual states to their people, and also through the contribution of nongovernmental organizations and individuals themselves. Unlike Africa,
Europe and America, Asia does not have any intergovernmental coalition,
or legislative machinery on human rights. There are no Asia-wide
organizations supporting or protecting human rights, consequently leading to
states being very largely variant in their approach to human rights.
The ASEAN, i.e., the Association of South-East Asian Nations deals with
Human Rights at a sub-regional level. Primarily a geo-political network
serving economic concerns as well, comprising 10 states in South-East
Asia, the ASEAN is credited with establishing the Intergovernmental
Commission on Human Rights. The Commission exists in a bid to promote
and protect human rights and regional co-operation on human rights, in the
member states. Each state has a representative, nominated by and made
answerable to each states government, and serve a three year term, subject
to the maximum of one renewal. The commission has been denounced as
toothless, different commentators, but several NGOs in the region have
been successful in bringing cases concerning alleged human rights
violations before it.[1461]
Also credited with according importance to human rights is the Cooperation
Council for the Arab States in the Gulf, comprising seven of the Arab States
in the Persian Gulf. The Arab Charter on Human Rights,[1462] which was
adopted by the Council of the League of Arab States in 1994 originally, with
a revised version coming into place a decade later, is an affirmation of the
commitment of the Arab States to the principles contained in the UN
Charter, the Universal Declaration of Human Rights, the International
Covenants on Human Rights, and the Cairo Declaration on Human Rights in
Islam. The national identity of the Arab States and the right to selfdetermination are accorded importance, along with a host of rights such as
the right to liberty, security, equality, free trial, freedom from torture,
owning private property, religious freedom and the like. The Charter, as
explained under Articles 45 and 48, creates an Arab Human Rights
Committee, which receives and studies reports of states in the League.
Australia
Australia is the only western democracy that has no bill of rights, but
nevertheless, has a number of laws and provisions enacted to protect human
402

rights. The Constitution of Australia has also been significantly useful in

determining human rights, with a little help from judicial activism. Australia
has been generally accorded a good record of maintaining human rights,
although sometimes, the past and present treatment of the Indigenous
population has come under the scanner.
The Australian Human Rights Commission is a national human rights
institution bearing independent, statutory status as a body of the Australian
Government. Vested with the responsibility of investigating alleged
infringements under the Australian anti-discrimination law, the Commission
generally investigates all issues such as the discrimination on grounds of
race, colour or ethnic origin, racial vilification, sex, sexual harassment,
marital status, pregnancy or disability. The Commission falls within the
ambit of the Attorney Generals portfolio. Each state has Equal Opportunity
or Anti-Discrimination Commissions, all of which essentially deal with
complaints on all forms of discrimination. If a complaint is made under any
of the concerned legislation pertaining to discrimination, the Commissions
begin investigation, and attempt to conciliate the complaints with the people
involved. In the event that the complaint cannot be conciliated, the
complainant can approach the Federal Court or the Federal Magistrates
Court in order to secure a hearing of the issue. The Court can then pass such
enforceable orders if unlawful discrimination is found to exist.
The legal protection of human rights in Australia depends on a combination
of common law, and statute-based enactments, which in turn are the
legislation passed by the Commonwealth Parliament. Sometimes, certain
rights may not be quite established under Common Law, and hence, may be
difficult to enforce. The Australian legal realm has specifically
incorporated the International Convention on Elimination of All Forms of
Racial Discrimination in the form of the Racial Discrimination Act, 1975,
the Convention on the Elimination of All Forms of Discrimination against
Women in the form of the Sex Discrimination Act, 1984, and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, in the form of the Crimes (Torture) Act, 1988.
Several areas of human rights raising concern in Australia have come to
light through reports filed by international organizations, of which the most
commonly mentioned are the policies and actions relating to Indigenous
people and to Australia's treatment of asylum seekers. Australia has also
been criticized by the United Nations on these two issues. On a domestic
level, plenty of complaints are made to the Commission about
discrimination. disadvantage, whether through restricted access to health or
403

education facilities, housing, work opportunities and other basic needs.

Europe
Europe was virtually the epicenter of the Second World War, with a greater
part of the destruction affecting the state. Rebuilding and renewal of living
in Europe involved a concerted effort at all levels, municipal and
international. During the Second World War, Europe was the hub of several
human rights violations, most commonly known of them all being the
Holocaust. The leaders of the region also brought results with their efforts
to create regional instruments to safeguard the rule of law, and also dealt
with Human Rights in the process. Three organizations came into being,
namely, the Council of Europe, the European Union- which was the
European Coal and Steel Community originally, and later, the Organization
for Security and Cooperation in Europe, which was the Conference on
Security and Cooperation in Europe. The organizations were fundamentally
devoted to deal with peace and stability to Europe, but in the process, also
dealt with human rights. The Council of Europe promotes the rule of law,
human rights and democracy, while the European Union emerged as an
institution seeking to promote trade and economic stability for its members,
and the Organization for Security and Cooperation in Europe came into
existence with the aim of maintaining peace and military security within the
jurisdictional expanse of Europe.
The Council of Europe has made, and continues to make several
appreciable efforts to promote human rights. Starting with the 1950
Convention for the Protection of Human Rights and Fundamental Freedoms,
the Council has worked several documents into existence. This convention
is known as the European Convention on Human Rights, and was the first
official legal treaty to protect human rights, and the first one with
enforceable mechanisms. The convention was essentially inspired by the
Universal Declaration of Human Rights, and is exclusively for member
states of the Council of Europe. There are thirteen protocols to the
Convention, and over all, the entire span of documents deal with civil and
political rights. The preamble mentions that European states are likeminded, with a common heritage of political tradition, ideas, freedoms and
respect for the rule of law. Much of the substantive part of the treaty deals
with the civil and political rights including the right to life (article 2),
prohibition of torture and slavery (articles 3 and 4), right to liberty and
security of the person (Article 5), right to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law
(article 6), prohibition of retroactive criminal legislation (article 7), right to
404

respect for private and family life (article 8), freedom of thought,
conscience and religion (article 9), freedom of expression (article 10),
freedom of assembly and association (article 11), the right to marry and
found a family (article 12), the right to an effective remedy before a national
authority if one of the Convention rights or freedoms is violated (article 13),
and a staunch policy of non-discrimination in pertinence to enjoyment of
rights and freedoms under the Convention (article 14), permissible and nonpermissible derogations (article 15), rights of aliens (article 16), abuse of
rights (article 17) and permitted restrictions on rights (article 18). The
Convention also has additional protocols, of which Protocol 1 protects the
rights to property, education and free elections, Protocol 4 deals with civil
imprisonment, free movement and expulsion, Protocol 6 deals with the
restriction of death penalty as a punishment to times of war or imminent
threats of war, while Protocol 7 deals with crime and the family as a unit.
Protocol 12, the most recent one to enter into force, deals with the issue of
discrimination, and Protocol 13 demands the complete abolition of death
penalty. Protocol 2, 3, 5, 8, 9 and 10 have been superseded by Protocol 11,
which introduced a fundamental change in the machinery of the convention,
and abolished the commission as a middle-man between individuals and the
court, thereby allowing individuals to apply directly to the court by
according it compulsory jurisdiction. Protocol 14 follows from Protocol 11,
in proposing means to further improve the efficiency of the Court, by
filtering out cases that have frugal chances of succeeding, along with those
that are broadly similar to cases brought previously against the same
member state.
The European Court of Human Rights was established in 1953, in
Strasbourg. The Court has jurisdiction over all members of the Council of
Europe, and accordingly, all decisions of the court have to be accepted by
the members as binding. The original system comprised a two-tier structure
of protecting rights, which initially included the European Commission of
Human Rights, but the present system, with the advent of Protocol 11, has
dispensed with the Commission. Applications on instances of human rights
violations from individuals and states are accepted by the Court. All
domestic remedies need to be exhausted before the court is approached. It is
necessary that a non-anonymous petitioner brings the petition to the court
within six months of the final domestic ruling on it, and the issue must
involve a violation of a guarantee set forth in the European Convention. The
applicant needs to be a victim, and res judicata applies. The Court has
adopted a rather flexible interpretation of the Convention, while explaining
that the Convention needs to be interpreted in keeping with present-day
405

conditions, and that the approach needs to apply not only for substantive
rights, but also procedural rules that govern the Conventions enforcement
machinery.[1463] The object of the Convention needs to be deployed as a
means to interpret and apply the convention, in a bid to assure that its
enforcement serves practical and effective purpose. Although the
convention, in principle, applies within the territorial expanse of the
European Continent, extraterritorial applicability has not been ruled out, and
has instead been read into article 1, as being a possibility included within
the jurisdiction clause.[1464]
After receiving a petition, the Court holds a public hearing in a bid to
determine whether the convention has been violated or not. The court, sitting
as a chamber, comprises nine judges, including one from the state in
question. In some rare events, the number of judges may be 21. If the
petition is declared admissible, the Court does everything in its capacity to
arrive at a friendly settlement, which also relates to the compensation laws.
Parties may appeal against the decisions of the Chamber to the Grand
Chamber, but this appeal must be made within a span of three months from
the date of judgment, after which they become final and binding. Once
delivered, all the judgments become binding unless an appeal is preferred
within the stipulated time. The Court is free to award just satisfaction to the
victims, including compensation as paid by the state at fault. The Committee
of Ministers of the Council of Europe monitors the judgments of the Court,
in a bid to ensure compensation is paid to victims, and victims are assisted
by reopening proceedings, lifting bans, striking police records and granting
residence. The Committee also ensures that changes are made where
necessary, such as changes in legislation, case laws, practices and other
procedural activities.
Although the European Charter of Human Rights generally corresponds with
the Universal Declaration on Human Rights, there is nothing in the
Convention that incorporates the contents of Articles 22-25 of the
Declaration. These provisions deal with social security, full employment,
fair conditions of work and adequate standards of living. Dealing with these
issues, instead, is a separate treaty called the European Social Charter,
1961, which entered into force in 1965. The European Social Charter
follows a more political form of enforcement, i.e., one which does not
depend too much on the judiciary as established under the European
Convention on Human Rights. The Social Charters reporting system was
made more stringent by the Additional Protocol to the European Social
Charter, 1988, and by another Protocol that amended the Charter in 1991.
Subsequently, another Protocol in 1995 was adopted, amending the
406

European Social Charter, now providing for a system of collective

complaints. The scheme provided therein is more or less on the lines of the
International Labour Organization,[1465] allowing International, national
organizations and trade unions of employers and employees to submit
complaints to an independent committee of experts.

Chapter 15- International Criminal Responsibility

Individual criminal responsibility has emerged as a rather significant
development in the field of international law, marking the melding of
elements of conventional international law along with the more dynamic
angles of human rights and humanitarian law. The branch as it stands today,
is a confluence of many different fields under international law itself, and
has transcended into the domestic realm as well, seeking to assure
implementation even at the lowest level in the hierarchy of international
law. To a large extent, the individual began attaining a rather pivotal
position under international law with the end of the Second World War.
Obligations and responsibilities began being demanded out of individuals,
and standards of conduct began being established.[1466] Offences of
privacy and slave trade have been brought under the scanner with the
imposition of criminal responsibility, but the evolution of law has allowed
the process of expansion to reach the domain of international criminal
responsibility, thereby bringing within its fold a larger number of crimes
and offences. Jurisdiction to hear the offence is no longer confined to the
state itself, as different principles of jurisdiction have evolved to allow
different states to try the issue, based either on the nationality of the
offender, the effects produced, or simply because the offence is a
universally accepted crime and that itself forms sufficient basis to determine
jurisdictional rights. This was the norm applicable to the offence of piracy.
[1467]
With these two offences essentially being the ones for which jurisdiction
could be exercised, it stands clear that the extent and ambit of international
criminal law was considerably narrow in terms of its approach. Even in the
early part of the twentieth century, there wasnt too much of a change in the
scenario considering that jurisdiction could be and was in practice,
practiced only by domestic courts. The introduction of international forums
for the exercise of jurisdiction in respect of international criminal
responsibility was something that evolved only in the more modern times.
Though, without doubt, domestic courts do indeed exercise greater
407

jurisdiction in pertinence to offences with international elements, such as in

the case of offences like torture and war crimes that occur outside the
territory of the state concerned, and that the offender is within the territorial
expanse of the state concerned, it is important to note that this occurs only
where an international treaty authorizes states to exercise such jurisdiction,
and such a treaty has been brought into effect within the internal expanse of
the state. Jurisdiction having already been dealt with, the focus now shifts
towards the evolution of apparatus at the international level to deal with
International Criminal Responsibility.
The Evolution of International Criminal Tribunals- A
Historical Outline
Backtracking a little, developments emerging with the end of the First World
War in this regard are noteworthy. A commission was set up by the Allied
Powers, which recommended that since the defeated powers had violated
the laws of war, high officials, inclusive of the Kaiser, ought to be
prosecuted for ordering such crimes based on the rules of command
responsibility. The commission also recommended that an Allied High
Tribunal be established in a bid to try violations of the laws and customs of
war, and the laws of humanity.[1468] Taking note of this, the Treaty of
Versailles, 1919, brought into its scope of acknowledgment, the fact that the
German Government recognized the right of the Allied and Associated
Powers to bring individuals accused of crimes against the laws and customs
of war before military tribunals under Article 228. The Kaiser was then
held individually responsible under Article 227. Eventually, the
Netherlands did not hand over the Kaiser, and only some trials took place in
German Courts in Leipzig, with a mixed result at the end of it all.[1469]
In terms of a historical evolution of the principle of individual
responsibility under international law, the actual starting point is the
Nuremberg Judgment, and subsequent Charter. The Nuremberg trials, which
tackled Nazi war criminals for the crimes perpetrated by them during the
Second World War, have come to remain a beacon of sorts for the evolution
of individual liability under international law. The Nuremberg trial emerged
as a precedential beginning for the evolution of jurisprudence pertaining to
international criminal law, by establishing several rules that addressed
concerns pertaining to individual accountability for crimes at the
international level. These principles came to be recognized as the
Nuremberg Principles, when the General Assembly of the United Nations
requested the International Law Commission to prepare a formulation of the
principles. The same came into existence, and the General Assembly
408

unanimously accorded affirmation to the principles and, in 1947, the

International Law Commission was requested to take them into
consideration while preparing the Draft Code of Crimes Against the Peace
and Security of Mankind. The Nuremberg principles themselves were seven
in number, and enumerated that any person who commits an act which
constitutes a crime under international law is responsible therefore and
liable to punishment; the fact that internal law does not impose a penalty for
an act which constitutes a crime under international law does not relieve the
person who committed the act from responsibility under international law;
the fact that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government official
does not relieve him from responsibility under international law; the fact
that a person acted pursuant to order of his Government or of a superior
does not relieve him from responsibility under international law, provided a
moral choice was in fact possible to him; any person charged with a crime
under international law has the right to a fair trial on the facts and law; the
crimes that are punishable as crimes under international law include crimes
against peace, war crimes and crimes against humanity; that complicity in
the commission of a crime against peace, a war crime, or a crime against
humanity is a crime under international law. There were four main judges at
the Trials, one each from the US, UK, USSR and France, and four other
alternates. The Nuremberg Tribunal was the first, official tribunal to dabble
with the question of international criminal responsibility.
Following closely at the heels of the Nuremberg Charter, there came a host
of principles that created a path towards individual responsibility under
international criminal law. Some of these instruments also established
courts and tribunals and other machinery of similar nature, befitting the
needs to prosecute the offender on an international plane. The Nuremberg
Charter is now legitimately construed a part of international law, having
paved the way for criminalizing genocide under the ambit of international
law, which in turn inspired the creation of the Genocide Convention of
1948, which reaffirmed the same principle. Much later, the ILCs Draft
Code of Offences against the Peace and Security of Mankind, 1954, came
into place in a bid to note that offences provided for under the code, as
being those against peace and security of mankind, were crimes under
international law, sufficient to hold responsible the individuals perpetrating
them, and to penalize them accordingly.[1470]
Plenty of war crimes trials also took place within the territorial expanse of
the Allied-occupied Germany, under the authority of the Control Council
Law, No. 10.[1471] There were twelve major US trials in Nuremberg,
409

[1472] and trials in the British occupied sector of Germany were carried
out under the Royal Warrant of 1946.[1473] The International Military
Tribunal for the Far East, established in 1946, dealt with Japanese War
crimes.
Individual responsibility was also accorded importance by the four 1949
Geneva Red Cross Conventions and the additional 1977 Additional
Protocols, I and II, but these conventions apply in relation to armed
conflicts. The Conventions require state parties to bring into force all
requisite legislation in order to provide effective penal sanctions for all the
perpetrators who either commit, or order the commission of grave breaches
as defined under the convention itself.[1474] The grave breaches as enlisted
under the conventions include the offences of willful killing, torture and all
forms of inhuman and degrading treatment, destruction and appropriation of
property of extensive scale that is not justified by military necessity but
rather carried out unlawfully and wantonly, deportation and transfer
unlawfully of persons who are protected, and the taking of hostages.[1475]
The list was augmented by Protocol I, which expanded the scope of the term
grave breaches, to include among others, the making of civilian populace
the object of attack, launching an attack against works or installations
comprising dangerous forces in the knowledge that such an attack would
result in excessive loss of life, or damage to civilians or their property
when committed willfully, causing death or serious injury, transferring
civilian populace from the territory of the occupying power to that of an
occupied area or deporting from an occupied area, apartheid and
discrimination based on race, and attacking monuments clearly recognized
as historical monuments, attacking works of art and places of worship, all
carried out willfully.[1476] The Conventions and the Protocols require that
any individual, irrespective of their rank or governmental status, are bound
personally for any war crimes and grave breaches committed by them. The
principle of command responsibility, also called superior responsibility,
requires that a person who possesses a position of authority, ordering or
commanding the commission of a war crime or a grave breach would be
held accountable on par with the subordinate who commits it.
The ILCs Draft Code of Crimes against the Peace and Security of Mankind,
though initially adopted in 1991 was revised later in 1996. The Draft code
requires that individual criminal responsibility shall be imposed in the
event where crimes such as genocide, aggression, crimes against humanity,
war crimes and crimes against the United Nations and its personnel are
committed.[1477] Article 4 of the Draft Code indicates that an individuals
responsibility neither precludes nor affects the state responsibility quotient.
410

This has been seen in two instances in International Law, where the Security
Council, in the context of Somalia condemned breaches of humanitarian law,
and held that perpetrators would be held individually responsible,[1478]
and in the context of Kuwaits incident with Iraqi occupation, reaffirmed
Iraqs liability under the Fourth Geneva condition and held the individual
perpetrators responsible for the offences carried out.[1479]
Rights of the Accused under Trial
As much as international law seeks to impose responsibility on the
individual, penalizing him for conduct that violates the permissible norms of
the law, it also accords a host of rights that shall be respected during the
trial of the individual.[1480] In essence, these rights are an echoed version
of what most human rights instruments cite, but hold particular relevance in
the light of international criminal responsibility. The rule of law maxim
warrants that everyone shall be equal before any International tribunals. The
accused shall always be entitled to a free and fair public hearing, except in
the event that there are concerns as to the protection of victims and
witnesses. The burden of proof rule indicates that the accused shall always
be presumed innocent until proven guilty. While determining charges against
the accused, care should be taken to inform him promptly in detail, in a
language he comprehends, of the nature and cause behind the charges against
him. The accused must necessarily be accorded all facilities necessary to
defend himself and his trial must commence without undue delay. He should
be tried in his presence, with ample opportunity to defend himself- either by
himself or through legal counsel. In this regard, it is necessary to inform the
accused of his right to legal representation, and in the event that he has none
of his own, to grant him legal facilities. The accused must also have the
right to examine witnesses against him, and to bring in his own witnesses,
and at no time must be compelled to be a witness against himself. It is also
necessary that the accused be free from any form of coercion, duress, threat
or torture, and at all times where he has linguistic challenges, he must be
allowed the services of an operator. The grounds of arrest must be made
known to him, and no arbitrary arrests are allowed.
Offences under International Criminal Law
There are certain kinds of offences that come within the definitive scope of
international criminal law. Most tribunals devoted to international criminal
law govern the commission of such offences, and penalize the perpetrators
behind the same.
Aggression: From customary international law to conventional law on
International Criminal Responsibility, Aggression has now come to be
411

recognized as a crime. Originally defined under the ambit of Article 6(a) of

the Nuremberg Charter, Aggression was named as crimes against peace, and
included within its ambit the planning, preparation, initiation, or waging of a
war of aggression or a war in violation of international treaties, agreements
or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing listed elements. General Assembly
Resolution 3314(XXIX), dated December 14, 1974, defined aggression.
Aside of Article 5 of the ICC Statute, there is no other instrument that
outlaws aggression while imputing individual responsibility for its
perpetration. Nevertheless, Clause 2 of Article 5 is quick to mention that the
International Criminal Court cannot exercise jurisdictional prowess over the
crime of aggression, until a definitive provision is adopted, outlining the
scope and ambit of the term in the form of a definition, setting out the very
basis upon which the Court may exercise jurisdiction in the context of such
an offence.
Crimes Against Humanity: Crimes against Humanity refers to an umbrella
term evolved under Article 6(c) of the Nuremberg Charter, as including
within its fold murder, extermination, enslavement, deportation and other
inhumane acts committed against any civilian populace, before or during the
war, or, persecutions on political, racial or religious grounds in execution
of, or in connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the law of the state where it was perpetrated.
[1481] Crimes against Humanity have been recognized as crimes attracting
individual criminal responsibility under Article 5 of the Statute of the ICTYwhich include murder, extermination, enslavement, deportation,
imprisonment, torture, rape, persecutions on political, national, ethnic,
racial or religious grounds; Article 3 of the ICTR Statute and Article 7 of
the ICC- which adds enforced disappearance and apartheid to the list, both
of which warrant that the crimes spoken of need to be committed as part of a
widespread or systematic attack against a civilian population, on national,
political, ethnic, racial or religious grounds, with knowledge of the attack.
This last element was incorporated into the definitive scope of the term
under the ICTY statute by the Tadic Case.[1482] The meaning of
widespread, as explained in the Akayesu Case,[1483] implies massive,
frequent, large-scale action, carried out collectively with considerable
seriousness and directed against multiple victims, and systematic, implies
thoroughly organized and following a regular pattern based on common
policy involving substantial resources.[1484] Nevertheless, the existence
of a policy itself is not necessary as an element in proving the crime and its
perpetration.[1485] Although in principle, many war crimes and crimes
412

against humanity are essentially the same, the distinction comes to fore in
that crimes against humanity need not have to take place during an armed
conflict, while still being widespread or systematic in the manner in which
they are carried out, against the civilian populace. The term civilian, as
explained in the Martic Case,[1486] should not be inclusive of those not
actively involved in combat at the time of perpetration of the crime, since it
could lead to the blurring of the difference between combatant entities and
non-combatant entities.
Genocide: Genocide refers to the deliberate and systematic destruction, in
whole or in part, of an ethnic, racial, religious or a national group.[1487]
The earliest legal definition of the term is found under Article 2 of the 1948
Genocide Convention, which defines genocide as any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such: killing members of the group; causing
serious bodily or mental harm to members of the group; deliberately
inflicting on the group conditions of life, calculated to bring about its
physical destruction in whole or in part; imposing measures intended to
prevent births within the group; [and] forcibly transferring children of the
group to another group. Genocide per se, has been seen at different points in
history, but only during the prosecution of the perpetrators of the Holocaust
at the Nuremberg Trials, and after the actual coinage of the term by Raphael
Lemkin, did the United Nations agreed to the Genocide Conventions
definition of the term. With time, the basic facets to determining the crime
and its existence came clear through jurisprudence. Per se, genocide need
not be a result of commission, but also a result of omission.[1488] In the
Jelisic Case,[1489] the ICTY noted that genocide requires the element of
mens rea, to accord it its specialty, differentiating it from other ordinary
crimes and other crimes against international humanitarian law. In the
Akayesu Case,[1490] the ICTR agreed that the intent necessary was
essentially the specific intention required as a constructive element of the
crime, which demands that the perpetrator clearly seeks to produce the act
he is charged with. In arriving at its conclusion, the Trial Chamber
explained the difficulties a tribunal could face in the course of establishing
the critical intent requirement, and asserted that at any point, recourse needs
to be had to the absence of confessions, to inferences from factual matter
available. The ICTR has held that he who incites another to commit
genocide, must himself be possessing an intention to commit genocide, in the
Ruggiu Case.[1491] Intention as a basis for genocide was also explained
by the ICTY in the Krstic Case,[1492] where the ICTY held that the
intention to eradicate a group, within the confines of a specific geographical
413

area- perhaps a region of a country, or a municipality, or a country itselfcould in effect, be capable of characterization as genocide, whereas the
intention to destroy a group, even if in part, means the process of seeking to
destroy a distinct part of the group, in contrast to an accumulation of an
isolated segment of individuals within it- which had to constitute a distinct
element. Therefore, in the event that a conviction for genocide is built upon
the intention to destroy a protected group in part, such part must necessarily
constitute a substantial part of the group. Considering that the aim of the
Genocide Convention itself is to prevent the intentional destruction of entire
human groups, the part so targeted needs to be sufficiently significant to
depict having sufficient impact on the group as a whole.[1493] The term
destruction implies either the physical or biological destruction of all, or
part of the group. It does not include within its ambit, any attacks upon the
cultural or sociological characteristics of a group, so as to remove its
separate identity.[1494] Killing is the core element of the offence, and the
accompanying intention to kill- whether spontaneous or premeditated.
Consequently, forced migration does not amount to genocide, but if
exhibitive of a genocidal intention, the pattern of conduct is relevant
evidence.[1495] The intention to prevent births within the group,
irrespective of whether it is done by impelling the child born of rape to be
part of another group, or where the woman raped refuses procreation
subsequently, such conduct may amount to a case of genocide.[1496]
War Crimes: War crimes refer to the serious violations of the laws
applicable in armed conflicts, i.e., International Humanitarian Law, paving
the way for international criminal responsibility. The broad term includes
offences such as murder, ill-treatment or deportation of civilian residents of
an occupied territory to slave labour camps, the murder or ill-treatment of
prisoners of war, the killing of prisoners, the wanton destruction of cities,
towns and villages, and any devastation not justified by military or civilian
necessity.[1497] The concept itself has been in existence for a long time,
but, the first instance of codification of these offences was in the Hague
Conventions of 1899 and 1907, followed by the Nuremberg Trials which
gave the crimes a more definitive shape. On a generic note, the acts against
persons or property protected under the Geneva Conventions, such as
willful killing, torture or inhuman treatment including biological
experiments, willfully causing great suffering or serious injury to body or
health, extensive destruction and appropriation of property not justified by
military necessity and carried out unlawfully and wantonly, compelling a
prisoner of war or a civilian to serve in the forces of a hostile power,
willfully depriving a prisoner of war or a civilian of the rights of fair and
414

regular trial, unlawful deportation or transfer or unlawful confinement of a

civilian, and taking civilians as hostages. Article 2 of the ICTY penalizes
the aforementioned as war crimes, and Article 3 stipulates that the violation
of the law or customs of war are also war crimes. Such violations
essentially include, but are not limited to the employment of poisonous
weapons or other weapons calculated to cause unnecessary suffering;
wanton destruction of cities, towns or villages, or devastation not justified
by military necessity; attack, or bombardment, by whatever means, of
undefended towns, villages, dwellings, or buildings; seizure of, destruction
or willful damage done to institutions dedicated to religion, charity and
education, the arts and sciences, historic monuments and works of art and
science and the plunder of public or private property. The ICC Statute also
lays down as many as fifty illustrative examples of offences, that amount to
war crimes. These offences are segregated into sections, such as grave
breaches of the Geneva Conventions of 12 August 1949; other serious
violations of the laws and customs applicable in international armed
conflict, within the established framework of international law; in the case
of an armed conflict not of an international character, serious violations of
article 3 common to the four Geneva Conventions of 12 August 1949 and
other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the ambit of the established
framework of international law. War crimes laws apply to individuals, and
international humanitarian law applies to states, which implies and explains
the logic behind trying individuals for war crimes perpetrated by them.
Individual responsibility for war crimes has been imposed several times in
history, with the Nuremberg Trials and the evolution of the Geneva
Conventions. Armed conflicts are of two kinds, and are studied
independently from the purview of International Humanitarian Law, which
also accords lesser rules for the latter. Nevertheless, war crimes occurring
at either level attract room for prosecution and individual criminal
responsibility. The Tadic Case[1498] is a hallmark in the jurisprudence
pertaining to war crimes. The ICTY explained that an armed conflict existed
wherever there was a resort to armed force between states, or protracted
armed violence between governmental authorities and organized armed
groups, or, between such groups within a state itself. Noting that
International Humanitarian Law applied from the initiation of such armed
conflicts and extended beyond the end of hostilities until such time that
peace was achieved, or, in the event of an internal conflict, until such time
that peace is achieved, the ICTY explained that humanitarian law continued
to apply in the entire territory of the states under war, if external conflict, or,
415

the whole territory under a partys control irrespective of whether combat

occurs there, if internal conflict.[1499] In concluding thus, the ICTY was
instrumental in reducing the distinction between both kinds of armed
conflict. In arriving at the conclusion, the ICTY noted that irrespective of
whether the conflict was internal or international, individual criminal
responsibility would be imposed for any war crime committed.[1500] The
ICTY also pointed out that for Article 3 of its statute to apply, (the relevant
provision penalizing war crimes), the violation of the standards should be
serious, in that they should comprise a breach of a rule that safeguards
important rules, and such breach must result in grave ramifications for the
victims, and, such violation must necessarily warrant individual criminal
responsibility under customary or treaty-based international law.[1501]
The Tribunals in Existence Today
Today, the most important institution in the context of international criminal
law is the International Criminal Court. However, it is not the sole entity
vested with judicial powers in relation to international criminal law, as
plenty of ad hoc tribunals, such as the International Criminal Tribunal for the
former Yugoslavia and the International Criminal Tribunal for Rwanda
exist. In addition, there are also a couple of hybrid courts and tribunals,
which in effect, are judicial bodies with both, international and national
judges on their boards, such as the Special Court for Sierra Leone,
constituted to investigate crimes committed during the Sierra Leone Civil
War, the Extraordinary Chambers in the Courts of Cambodia to investigate
crimes of the Red Khmer era, the Special Tribunal for Lebanon to deal with
the investigation of the assassination of Rafik Hariri, and the War Crimes
Court at Kosovo.
The International Criminal Court
The International Criminal Court is a permanent tribunal, propelled by the
aim of prosecuting individuals for crimes of genocide, crimes against
humanity, war crimes and the crime of aggression, although the latter is not
quite within the ambit of the courts jurisdictional extent.[1502] The
creation of the court has been the hallmark of sorts in terms of reform in
international law, since the end of World War II. The court deals with a
confluence of two branches of law, human rights and humanitarian law.
The 1948 Genocide Convention, specifically under Article VI, provided for
the trial of persons charged with genocide, either by a court in the territory
where the act itself had been committed, or, by an international penal
tribunal which was to be established afresh. Consequently, the International
Law Commission was led to undertake a study on the possibility of the
416

establishment of such an international court, and submit a report accordingly

on the feasibility and likelihood of having such a court in practice.[1503]
The General Assembly was then given the matter to deal with, which in turn
produced a draft statute towards creating such a penal court.[1504]
However, no action was taken immediately, for want of an appropriate
definition of aggression, and nothing was to be taken until such a definition
and the draft Code of Offences were completed. Until 1989, there was no
formal action in this direction. In 1989, Trinidad and Tobago proposed the
creation of a permanent international criminal court, specifically to deal
with the trafficking of drugs. Events transpiring in erstwhile Yugoslavia also
screamed for international attention, and eventually, the International Law
Commission adopted a Draft Statute for the International Criminal Court in
1994.[1505] The Draft Statute proposed that an international criminal court
would be established, and would be accorded jurisdictional competence to
deal with the offence of genocide, war crimes, crimes against humanity and
aggression, and also certain treaty crimes, namely, terrorism and drug
offences as dictated by certain UN Conventions. The draft proved to be
rather influential, and led to the convening of a Preparatory Committee in
December 1995.[1506] The Committee then led to the Rome Conference in
1998, and thereon, the Rome Statute in 1998.
The court came into existence on July 1, 2002, which was the date on which
its founding treaty, i.e., the Rome Statute of the International Criminal Court
entered into force, after sixty states signified their ratification of the treaty.
As a natural corollary, the court is permitted to prosecute all crimes
committed on or after the same date.[1507] The official seat of the Court is
at The Hague, in the Netherlands, but it is free to conduct its proceedings
anywhere. There are 114 member states, including most states of Europe
and Latin America, with almost half the states in Africa. 34 other states have
signed, but not ratified the Rome Statute. Israel, Sudan and the United States
have unsigned the Rome Statute, while expressing their intention that they
no longer wish to remain member parties, and therefore, have no
responsibilities or legal obligations under the treaty. States like India and
China, are among the 45 other states of the UN that have not signed the
treaty.
In terms of jurisdictional expanse, the International Criminal Court is free to
exercise jurisdiction only in cases where the accused is a national of a state
party, and when the alleged crime occurred within the territory of a state
party, or a situation is referred to the court by the UN Security Council. The
court is essentially designed to complement the existing national judicial
apparatus, and can exercise jurisdiction only when national courts are
417

unwilling or unable to investigate or prosecute such crimes.[1508] The

statute thus leaves the investigation and punishment of criminals to the state
parties in terms of a primary responsibility. The jurisdiction of the court is
largely territorial and personal in nature, and does not vest its foundational
existence upon the tenets of universality as a basis of jurisdiction, since as
indicated by article 12, jurisdiction can be exercised only in the event that
either the state on whose territory the offence occurred, or the state in which
the offender is accused of committing the offence, is a signatory to the Rome
Statute. Consequent to the fact that this is only a condition in the alternative
form as opposed to a cumulative prescription, the accused who may be a
national of a non-member state can still be subjected to a trial before the
International Criminal Court. In addition, when both factors are nonexistent, i.e., neither state is a member, the court may still exercise
jurisdiction in the event where a situation finds referral to the Prosecutor by
the Security Council, acting under the ambit of Chapter VII of the UN
Charter. However, an inbuilt protection mechanism is installed under
Article 16, which provides that no investigation or prosecution process may
be commenced or proceeded with within twelve months after the Security
Council has requested the court, in its resolution under Chapter VII of the
UN Charter. The request can also be renewed by the council, under the same
conditions.
Article 13 states that such a referral is binding, and therefore makes the
membership of a state to the Statute an irrelevant consideration. The
Security Council has deployed this mechanism in the context of Darfur, and
more recently, in Libya. Aside of this mode of referral, the International
Criminal Court can also exercise jurisdiction in pertinence to one or more
of the crimes in which a referral has been made to the Prosecutor by one of
the state parties, as explained under Article 13(a), or, as mentioned under
Article 13(c), where the Prosecutor has by himself initiated an
investigation, and suggests that there is reasonable ground for the
International Criminal Court to proceed with the investigation process,
along with the conclusion that a request for authorizing an investigation and
supporting material gathered will be submitted to the Pre-Trial Chamber.
Uganda had referred the situation pertaining to the Lords Resistance Army,
to the Prosecutor in December 2003,[1509] and Congo followed suit in
April the next year, making a reference as regards the crimes on its territory.
[1510] Later, in December 2004, the Central African Republic made a
reference of the armed conflict in 2002-2003, to the Prosecutor.[1511]
It is also permissible for victims to put across representations to the PreTrial Chamber, in keeping with the Rules of Procedure and Evidence. If this
418

is the chosen course of action, the Pre-Trial Chamber then examines the
request and all the documents submitted in its support, and after an analysis
may decide if there is a reasonable basis to proceed with an investigation.
In the event that it is found to be within the courts purview, the investigation
is authorized and begins accordingly, without any prejudice whatsoever to
all subsequent determinations by the Court, in pertinence to the questions of
jurisdiction and admissibility of a case, as explained by Article 15.
As on date, the court has opened investigations into six different situations,
starting with Northern Uganda, the Democratic Republic of the Congo, the
Central African Republic, Darfur, the Republic of Kenya and Libya.
Uganda, Congo and the Central African Republic involved a case
investigation at the instance of the states that referred the cases to the court.
The ICC has publicly indicted twenty three convicts, and is presently in the
process of conducting proceedings for twenty one others. Of these twenty
one, eight accused are fugitives, one of whom is presumed dead, five are in
custody, and two have appeared voluntarily before the court. Six others are
expected to follow suit voluntarily. By March 2011, three different trials
against four people were underway, with two trials regarding the situation
in the Democratic Republic of the Congo and one trial regarding the Central
African Republic. Two others have been committed to a fourth trial in
pertinence to the situation in Darfur.
The Court may not proceed with a request for surrender that requires the
requested state to act in a manner inconsistent with its obligations under
international agreements pursuant to which the sending states consent is
required, to surrender the person of such state to the Court, unless the Court
can first obtain the sending states cooperation to give consent towards such
surrender. Article 98(2) explains this rule.
The International Criminal Court is different from other international
criminal tribunals on many accounts. Primarily much wider in terms of
scope and extent where its jurisdiction is concerned, the International
Criminal Court is not confined to issues specific to one geographical
location, or to one specific state. Furthermore, the International Criminal
Court works on the principle of complementary relations, as a consequence
of which national courts are accorded priority. It is possible for the
International Criminal Court to be faced with a situation where a case
would be inadmissible for the most part, leading to the inability of the court
to exercise its jurisdiction.[1512] This happens in a couple of situations as
explained by Article 17. Primarily, if a state is already investigating or
prosecuting a case, unless it is unwilling to continue or genuinely unable to
419

carry out investigation or prosecution; or, where the case is already being
investigated or prosecuted by a state that has jurisdiction over it and such
state has decided not to continue prosecution, unless the decision is a result
of unwillingness or inability on part of the state to prosecute; or, where the
person concerned has already been subject to trial for the conduct which is
the subject matter of the complaint, unless the proceedings before the court
other than the International Criminal Court were for the sake of shielding the
person so concerned from criminal responsibility for crimes within the
jurisdiction of the International Criminal Court, or where those proceedings
were not conducted independently or impartially, the International Criminal
Court will not admit the case, and conduct a hearing.
The Court comprises four organs- the Presidency, a Trial Division and an
Appeals Division and a Pre-Trial Division, the Office of the Prosecutor and
the Registry, as mentioned under Article 34. Article 40 states that eighteen
judges serve a full-time basis, and as a prerequisite, all of them need to be
independent with competence in criminal law or in relevant areas of
international law, and must represent the principal legal systems in the
world. The panel ought to depict an equitable geographical representation,
and gender based representation. Article 36 states that judges are elected by
the Assembly of States Parties and prescribes a set of voting rules towards
the election of the judges. Article 38 explains that the Presidency is
responsible for the administration of the court, and comprises the President
and the First and Second Vice-Presidents. The Registry is vested with the
responsibility for all non-judicial aspects of administration of the Court as
per Article 43. Article 42 indicates that the Prosecutor heads the office, and
he is elected to his post by way of a secret ballot by members of the
Assembly of States, and is also assisted in his duties by one or more Deputy
Prosecutors. Articles 53 to 55 elaborate upon the Office of the Prosecutor
and his role, which, primarily functioning as an independent organ of the
Court, is responsible for the receipt of referrals and substantiated
information on crimes committed within the jurisdiction of the Court.
The Pre-Trial Division is a pre-trial analysis chamber of sorts, comprising
judges having had considerable criminal trial experience, serving in the
Division for a span of three years. The Chamber comprises either a single
judge, or a three-judge bench, as explained under Article 39, and this bench
is vested with the duty of confirming or rejecting the authorization to
commence investigations. It makes preliminary determinations as regards
the case, after examining whether it falls within the jurisdiction of the court
or not. The Chamber is also free to review the Prosecutors decision not to
proceed with an investigation, either on its own, or when the state making
420

the referral requests the Chamber to review the issue, or when the United
Nations Security Council requests the Chamber to review the same. The
Chamber can also issue warrants of arrests and summons, asking for the
appearance of people before the Court at the request of the Prosecutor, and
can also issue orders to grant parties their rights in the proceedings. The
Chamber can also, wherever necessary, provide for the protection and
privacy of victims and witnesses, and the preservation of evidence, and
provide for the protection of arrested people and people appearing in
response to summons, and can also provide for the protection of information
bearing overtones of national security. The Pre-Trial Chamber holds a
hearing in the presence of the Prosecutor and the person charged, along with
his counsel, within a reasonable span of time after the persons surrender or
voluntary appearance before the Court. This is undertaken to confirm, or
reject charges, as the case may be. If charges are confirmed, the person is
committed for trial by the Trial Chamber, and the Presidency constitutes a
suitable Trial Chamber to take the proceedings forward thereon.
The Trial Division is essentially vested with the primary duty of ensuring
free, fair and speedy trials, with full respect for victims and witnesses, and
with full respect for the rights of the accused, as per Article 64. It comprises
three judges, each with criminal trial experience, and each of whom serves
a period of three years. The judicial functions of the Trial Chamber are
carried out by three judges. The Trial Chamber is to determine if the
accused is innocent or guilty, and in the event that he is found guilty,
imprisonment for a term not beyond thirty years, or imprisonment for life, or
a levy of a fine is the prescribed punishment as the case may be. The
Chamber is also free to order the payment of compensation by the convict
towards the rehabilitation or restitution of victims. All trials are open to the
public, unless circumstantial requirements mandate otherwise.
The Appeals Division, the highest in the hierarchy, comprises judges with
an established degree of competence in relevant areas of international law.
It comprises of all judges assigned to the Appeals Division as per Article
39. The Prosecutor or the convict can appeal against the decisions of the
Pre-Trial and Trial Chambers to the Appeals Chamber, and a sentence can
be appealed against on the grounds of procedural error, factual error, error
of law, or any other ground that affects the fairness or credibility of the
proceedings, or the decision emanating therefrom. A sentence may be
appealed against on the ground of a disproportionate punishment being
levied for a crime, as explained under Article 81. Article 83 states that the
Appeals Chamber, when approached, is free to reverse or amend the
decision, judgment or sentence, or even order a new trial before a different
421

Trial Chamber.
The International Criminal Tribunal for the Former
Yugoslavia
The tribunal, oftentimes abbreviated into ICTY, deals with issues that came
to fore in the light of events that transpired in the former Yugoslavia.
Although the idea of establishing an international criminal court came under
the ambit of ample discussion and idea-tossing,[1513] the ICTY came to be
the earliest in the array of judicial and quasi-judicial apparatus aspiring to
prosecute individuals for their crimes under international law. The Tribunal
came into existence as a consequence of Resolution 827 of the United
Nations Security Council, passed on May 25, 1993. The resolution was
deployed as a means to bring the tribunal into existence as soon as possible,
so as to ensure that parties most closely associated with the subject-matter
of alleged war crimes, should be bound in a manner that does not hinge upon
consensual submission. Prior to the establishment of the tribunal, several
resolutions of the Security Council depicted grave concern for the events
leading to grave breaches of international humanitarian law, and pursued a
pledge in the direction of reaffirmation of responsibilities of the parties.
[1514] Following these resolutions, there came resolution 780 (1992), by
which the UN Security Council established a Commission of Experts, in a
bid to examine and analyze all information pertaining to evidence of grave
breaches of the Geneva Conventions, and other rules of international
humanitarian law, that occurred within the territorial expanse of former
Yugoslavia. The Commission in turn came out with a report in 1993,
concluding that grave breaches and other violations of international
humanitarian law had in fact been committed in the territory of the former
Yugoslavia, and essentially included offences of willful killing, ethnic
cleansing, mass killings, torture, rape, pillage and destruction of civilian
property and the destruction of cultural and religious property, along with
arbitrary arrests of civilians.[1515] After this, resolution 808 (1993) led to
the Security Council calling for the establishment of an international tribunal
for the sake of prosecuting persons responsible for serious violations of
international humanitarian law, committed in the territory of the former
Yugoslavia since 1991. Resolution 827(1993) formally established the
tribunal, being the resolution that adopted the Secretary-Generals report
incorporating a draft statute with its own commentary attached.[1516]
The tribunal has jurisdiction over four basic groups of crimes committed on
the territory of the former Yugoslavia, since 1991. The groups are grave
422

breaches of the Geneva Convention, violations of the law or customs of law,

genocide and crimes against humanity. Essentially an ad hoc court, the
tribunal is located in The Hague. The Tribunal is empowered to prosecute
perpetrators responsible for serious breaches of international humanitarian
law, committed in the territory of the former Yugoslavia since 1991, as
explained under Articles 1 and 8 of its Statute. The Tribunal comprises
three organs, namely, the Registry, the Office of the Prosecutor and the
Chambers, as explained under Article 11. The Registry is the administrative
wing, and the Office of the Prosecutor, as the name suggests, deals with
investigations and indictments, and brings all issues relevant under trial.
The Trial Chambers themselves are three in number, comprising one
presiding judge and two other judges each. There is also an Appeals
Chamber, comprising seven members who sit in a panel of five, headed by
the President. The seven members are essentially five from the ICTY itself,
and two others come from the International Criminal Tribunal for Rwanda
as explained by Article 14. Articles 12 and 13 indicate that the Chambers
have a maximum of sixteen permanent judges, with a maximum of twelve ad
litem judges all drawn from a pool of twenty seven judges elected by the
UN General Assembly, holding a four-year long renewable term, as
explained by Articles 12 and 13. The Statute lays down the crimes
pertaining to which the Tribunal may exercise jurisdiction, as mentioned
under Articles 2 to 5, and these crimes include grave breaches of the
Geneva Conventions of 1949, violations of the laws or customs of war,
genocide and crimes against humanity. Article 7 warrants that people who
planned, instigated, ordered or committed, or otherwise aided and abetted
in the planning, preparation or execution of crimes as mentioned above,
shall be responsible individually for the crimes committed by them. The
official position occupied by such person accused, does not preclude him
from criminal responsibility, and does not even mitigate punishment.
Similarly, the fact that the subordinate had committed the crime does not
automatically relieve a superior of his responsibility, if such superior had
either known, or had reason to know that the subordinate was about to, or
had actually committed the crime and the superior had failed to take
necessary and reasonable measures to prevent the acts, or to punish the
perpetrators accordingly for their conduct. The fact that an accused person,
acting pursuant to an order of a government, or of a superior, will not
relieve him of his criminal responsibility, while it is possible that it may
account for a mitigating factor if the Tribunal determines that justice
requires the same. The Appeals Chamber of the Tribunal takes up appeals
from the decisions of the subordinate tribunal. As explained in the Tadic
423

Case,[1517] the tribunal indicated that customary international law imposed

criminal responsibility for serious violations of humanitarian law,
governing internal and international armed conflicts.
The Tribunal has concurrent jurisdiction with the national courts, in
pertinence to the prosecution of relevant accused persons. However, the
Tribunal has primacy over national courts, therefore, allowing the Tribunal
to ask the national courts to defer to its competence as explained under
Article 9. As a natural corollary, states are under an obligation to cooperate
with International Tribunal, in the process of investigation and prosecution
of persons accused of committing serious violations of international
humanitarian law, and must comply without any delay, with any request for
assistance, or, an order issued by the Trial Chamber. Such assistance may
include, though is not limited to the identification of people, location of
people, taking testimonies, producing evidence, arresting and detaining
people, surrendering and transferring the accused to the International
Tribunal, as explained under Article 29. Article 10 speaks of res judicata,
mentioning that no person is allowed to be tried by a national court for acts
that constituting serious violations of international humanitarian law under
the ambit of the Statute, for which he has already been tried by the tribunal;
but allows the tribunal to try a person for relevant acts after trial by a
national court, where the act for which he was tried was characterized as an
ordinary crime, or where the national court proceedings were not impartial
or independent, or were designed to protect the accused from responsibility,
or if the case was prosecuted without diligence. The Prosecutor initiates
investigations into alleged offences under the Statute, either ex officio, or
based on information gathered from any source, which could be either the
government or UN organs, or intergovernmental and non-governmental
organizations. Once received, the information is assessed and studied by the
prosecutor, who then decides if there is a sufficient basis to proceed with a
trial. The Prosecutor is permitted to question suspects, victims and
witnesses, collect evidence and conduct on-site investigations as he may
deem fit.
Once it is clear that there is a prima facie case, the Prosecutor will prepare
an indictment, along with a statement of the facts, and the list of the crimes
with which the accused is charged. The indictment is then transmitted to a
judge in the Trial Chamber, who will then review the same. Once it is
satisfied that a prima facie case has been established by the Prosecutor, the
judge will confirm the indictment, or else, the indictment will be dismissed.
When the indictment is confirmed, the judge may, at the request of the
424

Prosecutor, issue such orders and warrants for the arrest, detention,
surrender or transfer of persons and any other orders as may be required for
the conduct of the trial. The Trial Chambers will then ensure that the trial is
fair and expeditious, and will conduct the proceedings in keeping with the
rules of procedure and evidence, while according respect for the rights of
the accused, and according protection to victims and witnesses, as
explained under Articles 18 to 20. Article 24 explains that the judgment will
be reached by the Trial Chamber, and punishment limited to imprisonment,
will be imposed upon conviction. An appeal if any, may be preferred to the
Appeals Chamber, either on the grounds of an error of law invalidating the
decision or of an error of fact occasioning a miscarriage of justice, and
accordingly, and as indicated by Article 25, the Appeals chamber may
affirm, reverse or revise the decision taken by the Trial Chambers.
The ICTY has dealt with plenty of significant issues in dealing with
international criminal law. In the Tadic Case,[1518] the Appeal Chamber
noted that it had the power to review the question of the legality of the
establishment of the Tribunal and also went on to assert that the UN Security
Council had adopted a decision under Chapter VII of the UN Charter, which
was binding on all member states, in a bid to create the Tribunal in a
background of restoring international peace and security.
The last indictment was issued on March 15 2004, and the Tribunal aims to
complete all its trials by the middle of 2011, and the appeals by 2013, with
the exception of Radovan Karadzic, whose trial is expected to end in 2012,
and appeal in 2014. While this strategy is generic, it does not apply to Ratko
Mladic and Goran Hadzic, both of whom have been charged but are still at
large.
The International Criminal Tribunal for Rwanda
(ICTR)
The International Criminal Tribunal for Rwanda is an international court
exclusively for Rwanda, established in November 1994 by Resolution 955
of the UN Security Council, in order to try those responsible for the
Rwandan Genocide and other serious violations of international law in
Rwanda, or by Rwandan citizens in states close to Rwanda, between
January 1 and December 31, 1994. Following Resolution 977, it was shifted
to Arusha, in Tanzania. In 1998, the operative scope of the Tribunal
expanded by way of Resolution 1165.
The statute of this tribunal bears similarities to the statute of the ICTY. In
terms of its jurisdictional expanse, the tribunal can try cases pertaining to
charges of genocide, crimes against humanity and war crimes, all of which
425

are defined as violations of Common Article Three and the Additional

Protocol II of the Geneva Conventions, dealing with war crimes committed
during internal conflicts. Articles 2 to 4 mention the crimes that the Tribunal
may try, with Article 2 mentioning genocide, Article 3 dealing with crimes
against humanity and thereby encompassing within its fold murder,
extermination, enslavement, deportation, imprisonment, torture, rape,
persecutions of a political, racial and religious grounds, and other inhumane
acts, when committed as part of a widespread or systematic attack against
any civilian population on national, political, racial or religious grounds,
and Article 4 mentions the violations under common article 3 of the Geneva
Convention and of Additional Protocol II. Article 6 provides for individual
criminal responsibility in pertinence to planning, ordering, committing or
aiding the crimes listed. All provisions are similar to the Statute of the
Yugoslav Tribunal in the context of the absence of immunity for people
holding official positions, command responsibility and superior orders. The
ICTR also has concurrent jurisdiction with the national courts of states, and
also enjoys superiority over national courts. It is permissible for the
Tribunal to formally request national courts to defer to its competence.
[1519] No person may be tried before a national court for acts that
constitute serious violations of international humanitarian law, under the
present Statute, for which he has already been tried by the ICTR, but, a
person who has been tried before a national court for acts constituting
serious violations of international humanitarian law may be tried
subsequently by the Tribunal only if either act he was tried for was
characterized as an ordinary crime, or the national court proceedings were
either not impartial or independent, or were designed in such a way that the
accused be shielded from international criminal responsibility, or the
prosecution was done devoid of diligence, as explained by Article 9.
The first trial by the Tribunal was that of Kambanda,[1520] where for the
first time, a former head of government was convicted for the crime of
genocide after he pleaded guilty. Following this, was the trial of Jean-Paul
Akayesu, [1521] in 1997, which established the precedent that rape is a
crime of genocide. The tribunal noted that the rapes of Tutsi women in Taba,
were primarily accompanied with the intention of killing the women. This
led the tribunal to conclude that the acts of rape and sexual violence, and
other acts of serious bodily and mental harm committed against the Tutsi,
reflected the determination to make Tutsi women suffer, and to mutilate them
even before killing them indicated the intent to destroy the Tutsi group while
inflicting acute suffering on its members in the process. Presiding Judge
Navanethem Pillay was known to have stated after a verdict, that from time
426

immemorial, rape was regarded as spoils of war, and would henceforth be

considered a war crime, too. [1522] However, progress since, has just been
unsatisfactory, with tensions simmering in Rwanda periodically.[1523]
The Tribunal comprises three Trial Chambers, an Office of the Prosecutor
and a Registry, and all three perform functions akin to the ICTY as
explained under Article 10. The Chambers are comprised of sixteen
permanent independent judges, and by a rule, no two judges are to come
from the same state in terms of nationality, and a maximum at any given time
of nine independent judges may deal with a Trial. The ICTR shares the joint
Appeals Chamber with the ICTY, with two members of the Rwanda
Tribunal presiding over the cases tried by it.[1524]
By 2011, the Tribunal has finished 50 trials, and convicted 29 accused
persons, while 11 trials are in progress, and 14 individuals are awaiting
trials in detention, but the prosecutor intends to transfer 5 to national
jurisdiction for trial. As many as 13 others are still at large, some of whom
are suspected dead. The Tribunal has been encouraged by the Security
Council through several resolutions to complete its investigations by the end
of 2004, to complete all trial activities by the end of 2008 and to complete
all its work by 2012.[1525]
Hybrid Courts and Tribunals
A new version of judicial instruments, in the form of hybrid courts and
tribunals, have also burgeoned in the course of dealing with international
criminal law, comprising a mix of national and international elements
relevant to dispute settlement. These tribunals essentially function to
enhance means of acceptability of all judicial decisions pointing in the
direction of imputing responsibility on wrongdoers, especially in situations
where post-conflict situations still depict volatility in the form of political
risks and economic costs. In true essence, these courts are domestic courts,
established for the specific state, and therefore apply the law of that
particular state. However, they differ from other courts of domestic cadre in
that they intersperse their actions with a little smattering of international
law, international experts, or, if they so require, international support.
The Extraordinary Chambers in the Courts of
Cambodia
The Extraordinary Chambers in the Courts of Cambodia are more commonly
called the Khmer Rouge Tribunal, and refer to the national courts
established in pursuance of an agreement entered between the Royal
Government of Cambodia, and the United Nations. The idea behind its
establishment was primarily to try certain senior members of the Khmer
427

Rouge, for serious violations of Cambodian Penal Law, International

humanitarian Law and customary international law, and also for conventions
to which Cambodia was signatory, all of which were committed between
April 17, 1975 and January 6, 1979. The key crimes to be tried included
within its fold crimes against humanity, war crimes and the crime of
genocide.
In 1997, Cambodias erstwhile co-Prime Ministers wrote to the United
Nations Secretary General, seeking assistance towards setting up trial
proceedings against the senior leaders of the impugned Khmer Rouge
regime. Following several rounds of negotiations, an agreement was finally
drawn up and signed between the Royal Government of Cambodia and the
United Nations was signed on June 6, 2003. The agreement was also
endorsed by the General Assembly.[1526]
Consequent to the agreement, Cambodia established a Khmer Rouge Trial
Task Force, in order to set up a legal and judicial structure for the purpose
of trying the remaining leaders for war crimes and crimes against humanity.
Nevertheless, because of poor economic conditions and plenty of financial
commitments and burdens, there wasnt much progress, and the tribunal had
to function within the confined scope of limited funding. Other states did
their bit by offering funding- especially Canada, India and Japan, but
inadequate funding still seemed a huge concern even in 2006. Despite the
obvious handicap, the Task Force did its best with work, and took
possession of two buildings on the Royal Cambodian Armed Forces High
Command headquarters in Kandal, and began work. In March, 2006, the
erstwhile Secretary General of the United Nations, Kofi Annan, nominated
seven judges for a trial of the Khmer Rouge leaders. Under the agreement,
the tribunal was to comprise local and international judges, and thus, in
May, the same year, Justice Minister Ang Vong Vathana declared that
Cambodias highest judicial body had approved 30 Cambodian and UN
judges as authorized to preside over genocide tribunal for the surviving
Khmer rouge leaders, and these judges were sworn in July that year.
The agreement, under Article 2, stated the subject-matter jurisdiction of the
court as being consistent with the expanse outlined under the Cambodian
Law of 2001, and the same law would be the tool for the implementation of
the Agreement. Aside of this, the agreement would also be bound by the
Vienna Convention on the Law of Treaties, 1969, and therefore qualifies as
an international agreement. In terms of its jurisdictional ambit, the
Extraordinary Chambers essentially cover the crime of genocide as defined
under the ambit of the Genocide Convention of 1948, crimes against
428

humanity as explained under the Rome Statute of the International Criminal

Court 1998, all grave breaches of the 1949 Geneva Conventions and a host
of other crimes laid down under Chapter II of the Cambodian Law of 2001,
as mentioned under Article 9, crimes under the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict and crimes
under the Vienna Convention on Diplomatic Relations. If a suspect is found
guilty, he may be sentenced to prison, or have his property confiscated. A
death penalty cannot be imposed, as is the case with similar tribunals
established by the United Nations. As of date, five people have been
indicted by the Court for genocide, crimes against humanity and war crimes,
of which only one has been convicted and has gone on appeal for the
sentence, while the other four are still in the pre-trial stages.
The Chambers comprise a Trial Chamber, with three Cambodian Judges and
two International Judges; a Supreme Court Chamber which functions as an
appellate and final instance chamber, comprising four Cambodian judges
and three international judges. Article 3 of the agreement indicates that the
UN Secretary General would nominate seven judges, and the Cambodian
Supreme Council of Magistracy would choose five of these seven nominees
to serve in the Chambers. Independent co-investigation judges, one each
from the Cambodian and International pool would be responsible for the
investigations, as dictated by Article 5. Article 6 indicates that two
independent co-prosecutors, one each from the Cambodian and International
pools, respectively, both of whom are competent to appear in both
Chambers, will be responsible for the conduct of the prosecutions.
The Chambers follow procedure in accordance with Cambodian Law, but in
the event that certain aspects are not covered by Cambodian law or though
providing the necessary, the law itself is ambiguous, or the law in place
does not conform to the mandates of international law, the Chambers are
free to have regard to international law. At all times, the chambers are
expected to keep to international standards of justice, fairness and due
process of law as established under Articles 14 and 15 of the International
Covenant on Civil and Political Rights.
The East-Timor Special Panels for Serious
Crimes
East-Timor faced a period of terrible violence and its ghastly impact, at the
instigation of pro-Indonesian military entities following the end of
Indonesian occupation. With this period drawing to a close, the UN Security
Council created the United Nations Transitional Administration in East
Timor, called the UNTAET more popularly, and accorded it a rather wide
429

mandate to administer the region.[1527] With Regulation No.1 being

adopted in November 1999, all the legislative and executive responsibility
for East Timor came to be vested in the UNTAET, and all related duties,
powers and responsibilities had to be exercised by the Transitional
Administrator, who was also accorded the right and competence to appoint
such other person necessary to perform functions in the civil administration
of the territory, and conversely, the power to remove such person and to
issue regulations and directives. The UNTAET created a new network of
courts of which the special panels to deal with serious crimes within the
Dili District, and the Court of Appeal were a few.[1528] The serious
crimes that were to be tried included genocide, war crimes, crimes against
humanity, murder, all forms of sexual offences and torture, and individual
criminal responsibility was also levied wherever applicable.[1529] The
laws applicable to these courts were the Laws of East Timor,[1530] and
also all other subsequent UNTAET regulations bearing relevance to the
issues, along with all applicable treaties and principles recognized under
International Law and rules under the laws of armed conflict.
The District Court of Dili comprises panels, each of which comprise two
international judges and one judge of East-Timor origin. The same went for
the Court of Appeal in Dili. For cases that had a considerable degree of
importance in terms of degree of the offences, a five-member panel is
constituted, comprising three international judges and two judges of EastTimor, as mentioned under Section 22. In the Armando Dos Santos Case,
[1531] the Court of Appeal concluded that given that Indonesias occupation
of East Timor was never valid in the eyes of law, Indonesian law had no
validity and no force, thereby leading domestic law to be Portuguese lawwhich in turn was applicable to cases and crimes committed prior to June 6,
2000. The decision met with ample criticism. Two years later, in May, the
United Nations granted authority to the new institutions of East-Timor, with
the UNTAET being replaced by the United Nations Mission of Support in
East Timor, abbreviated as the UNMISET, functioning with the UNTAET
regulations being operative. In 2005, the UNMISET was closed down, as
also the Serious Crimes Unit. Subsequently, the Special Panels suspended
its operations indefinitely. During the period when these forums were
active, as many as fifty-five trials took place, with the conviction of eighty
four people and the acquittal of three.[1532]
The Kosovo Regulation-64 Panels
Resolution 1244, adopted by the UN Security Council, among other things,
called for the establishment of an international civil presence in Kosovo,
430

which in turn was granted responsibilities that included promoting the

establishment, pending a final settlement, of substantial autonomy and self
government, performing basic administrative functions, organizing the
development of provisional institutions for democratic and autonomous selfgovernment pending a political settlement, and protecting and promoting
human rights.[1533] The United Nations Interim Administration Mission in
Kosovo (UNMIK) was given extensive powers for the purpose of dealing
with this civil presence of international nature. The first regulation of the
UNMIK was issued in 1999, and section 1 stated that all legislative and
executive authority pertaining to Kosovo, including the judicial
administration, was vested in the UNMIK, and was exercised by the Special
Representative of the Secretary General. The Special Representative was
authorized by Section 1.2 of the same regulation, to perform functions in the
civil administration in Kosovo, including the judiciary, or even to remove
such person in keeping with the law applicable.
The UNMIK adopted regulation 2000/6, after a couple of disturbances in
2000, authorizing the appointment of international judges and prosecutors
for trials, following which regulation 2000/64 was adopted, providing
authority for the UNMIK to create panels that were to be called the
Regulation-64 panels, comprising three judges of which at least two were
international, at the behest of the accused, defense counsel or prosecutor.
These judges functioned like regular court judges in Kosovo, and derived
their powers from Kosovos domestic laws. The applicable domestic laws
were regulations passed by the Special Representative, and all allied
subsidiary instruments issued by him, and all the laws in force in Kosovo as
on March 22, 1989.[1534] Nevertheless, there wasnt much success as
judgments of national judges that ended in convictions were overturned in
retrials by international judges, and the decisions were not published or put
on record. Eventually, Kosovo declared independence unilaterally in 2008.
Special Court for Sierra Leone
At the tail end of a terribly ghastly and violent war, an agreement between
the United Nations and Sierra Leone was drawn up in January 2002,
following Security Council Resolution 1315 (2000). The agreement
established the Special Court for Sierra Leone, so as to prosecute people
bearing the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law, committed in the Sierra Leone
territory since November 30, 1996, in keeping with the basis of individual
criminal responsibility.[1535] Article 1(2) of the Statute of the Special
Court for Sierra Leone states that any violations by peacekeepers and allied
431

people who are present in the state on account of agreements with the UN or
other states and regional organizations, or otherwise in pursuit of consent of
the Sierra Leone government, all fall within the jurisdictional ambit of the
sending state.
The Court comprises two Trial Chambers and one Appeals Chamber, a
Prosecutor and the Registry. Three judges constitute each Trial Chamber. Of
these, one is appointed by the government of Sierra Leone, and the
remaining two are appointed by the UN Secretary General. Article 12 states
that the Appeals Chambers comprise five judges, of which two are
appointed by the government, three are appointed by the UN Secretary
General. As an appellate wing, the Appeals Chamber hears appeals from
convicted people from the Trial Chamber, or, sometimes, from the
Prosecutor in pursuit of grounds of procedural error, error of law that
invalidates a decision, or an error of fact that has resulted in miscarriage of
justice. Consequently, the Appeals Chamber is free to affirm, reverse, alter
or revise the decisions of the Trial Chamber, and in deciding appeals, the
judges need to keep with the decisions of the Appeals Chamber of the ICTY
and ICTR. Interpretation and application of Sierra Leones law is to be
governed by precedents emanating from the Supreme Court of Sierra Leone,
as per Article 22.
The Prosecutor is appointed by the UN Secretary General, and holds office
for a three year term. He functions independently as an organ separate from
the Special Court. The Prosecutor is vested with the duty of investigation
and prosecution of people bearing the greatest responsibility for serious
violations of international humanitarian law, and crimes under the ambit of
Sierra Leones law, committed on the territory of Sierra Leone since as
early as November 30, 1996. In pursuit of this responsibility, the Prosecutor
is free to exercise the power to question suspects, victims and witnesses.
He may collect evidence, and may also conduct on-site investigations.
Article 15 states that in his duties, the Prosecutor is assisted by a Deputy
Prosecutor from Sierra Leone, and a group of staff, of both Sierra Leonean
and International affiliation. Article 16 explains that the Registry performs
all administrative duties, and services the Special Court, and that the
Registry is appointed by the UN Secretary General, following consultations
with the President of the Special Court.
As for the jurisdictional ambit of the Special Court, the crimes it tries
include crimes against humanity, all violations of common article 3 of the
Geneva Conventions and Additional Protocol II, other serious violations of
international humanitarian law, as per Articles 2 to 4 of the Statute. Article
432

5 of the Statute brings certain crimes under the Sierra Leonean law under the
courts jurisdiction, specifically being all crimes relating to the abuse of
girls under the Prevention of Cruelty to Children Act, 1926, and offences of
wanton destruction of property under the Malicious Damages Act, 1861.
While this is indeed true, the Special Court has no jurisdiction over a
person below the age of fifteen, at the time of the commission of the crime.
Further, a person tried before the Court may be tried for the same offence
before a national court of Sierra Leone. Article 8 stipulates the existence of
concurrent jurisdiction, for the courts in Sierra Leone and the Special Court,
but in all procedure, the Special Court enjoys primacy over the national
courts. However, Article 9 interjects with a small caveat, holding that
anyone who has been tried by a national court for offences mentioned under
Articles 2 to 4, will be permitted to be tried subsequently by the Special
Court, if either the act was an ordinary crime, or, if the national court
proceedings are vitiated on account of being partial, or lacking
independence, or were carried out in such a way that due diligence was
absent in the prosecution.
The Special Court cannot impose the death penalty as a punishment for any
convict. If found guilty, criminals can either be sentenced to a period of
imprisonment, or be subject to confiscation of their property. Till date, 13
individuals have been indicted, with charges of crimes against humanity,
war crimes and other violations of international humanitarian law. No
individuals have been charged with crimes under the Sierra Leonean law,
though. Eleven people have been detained by the court, of which two passed
away prior to being sentenced. Eight of the remainder have been sentenced
and are serving their sentences in Rwanda, while the singular remainder is
currently on trial. One individual who was indicted passed away while still
a fugitive, while another is still at large with no information available as to
his whereabouts. Five individuals have been charged with contempt of
court, of which four were convicted and one acquitted.
The Special Court was devised to have followed a completion strategy,
where proceedings were to be completed by 2007,[1536] but the court still
continues in existence, not having been successful in completing its
proceedings by the allotted period.
The Iraqi High Tribunal
The Governing Council of Iraq, at the behest of the Coalition Provisional
Authority was authorized on December 10, 2003, in a bid to establish the
Iraqi Special Tribunal and equip it with the power to hear crimes alleged
against the erstwhile regime of Saddam Hussein.[1537] A revised statute
433

was then enacted in 2005, renaming the tribunal as the Iraqi High Tribunal.
In terms of its jurisdictional competence, the tribunal has the competence to
deal with issues of genocide, crimes against humanity and war crimes, all of
whose definitions are based on the provisions of the Rome Statute all of
which were incorporated into Iraqi law. The offences that the tribunal
concerned itself were essentially those committed between July 16, 1968
and May 1, 2003, either by Iraqi nationals or residents, as explained by
Articles 1 and 11 to 14 of the Statute, and naturally as a corollary, all
persons accused of committing crimes within the tribunals jurisdiction, if
convicted, bear individual criminal responsibility. The Tribunal shares its
jurisdictional competence concurrently with the national courts in Iraq, but
still has a degree of primacy over them.
The President of the Tribunal is supposed to appoint non-Iraqi nationals to
function as observers or as advisors to the judges of the tribunal- both trials
and appeals chambers, under Article 6(b). Their duty only extends to
assisting judges on matters pertaining to international law, and in pertinence
to experience gathered in similar tribunals, and also to monitoring the
protection by the Tribunal of the rules of due process of law. While
appointing these members, the President may also seek assistance from the
international community of states, and even the United Nations, should the
occasion demand such assistance. The tribunal is allowed to impose the
Death penalty, as was done in the case of Saddam Husseins trial, in the
Dujail Case.[1538]
The Serbian War Crimes Chamber
The Serbian National Assembly, in 2003, adopted a law that sought to
establish a specialized War Crimes Chamber, which was to investigate and
prosecute crimes against humanity and serious violations of international
humanitarian law, as laid down and defined under the ambit of Serbian Law.
Consequent to the law, a War Crimes Prosecutors Office was established in
Belgrade, comprising two panels of three judges each, and two investigative
judges. Each judge is selected from the Belgrade District Court. The
Serbian Chamber differs from the other tribunals vested with powers to deal
with international criminal law, in that it is essentially a national court, and
does not enjoy primacy over any of the other domestic courts in Serbia
itself. It is not established with an international hand in the procedure of its
origin, and therefore, remains a national court for all practical purposes.
The first trial was the Ovcara Case.[1539]
The Bosnia War Crimes Chamber

434

As a result of a series of joint conclusions between the Office of the High

Representative in Bosnia and the International Criminal Tribunal for the
former Yugoslavia, that suggested the creation of a specialized chamber
within the State Court of Bosnia and Herzegovina to try cases involving
perpetrators of war crimes,[1540] the Chamber came into existence in
2005, with the UN Security Council supporting its creation under Resolution
1503 (2003).
The Chamber comprises trial and appeal chambers, with five judicial
panels, each comprising two international judges and one local judge. The
local judge is the presiding judge of the panel. The Office of the Prosecutor
of the State Court also has another wing, the Special Department for War
Crimes. Five international prosecutors, one international acting prosecutor,
eight local prosecutors and a deputy prosecutor comprise the office. There
is also a Registry that deals with the appointment and engagement of
international judges and prosecutors. All international judges are appointed
by the High Representative after a joint recommendation of the President of
the State Court, and the President of the High Judicial and Prosecutorial
Council. International prosecutors are appointed by the High
Representative, subsequent to a joint recommendation from the Bosnian
Chief Prosecutor, the President of the High Judicial and Prosecutorial
Council and the Registry.[1541] The Bosnian law, inclusive of all criminal
substantive and procedural laws, applies to the court.
The jurisdictional ambit of the Chamber was to concern cases referred to it
by the ICTY, in congruence with Rule 11bis of the ICTY Rules of Procedure
and Evidence, in pertinence to lower to mid-level accused. The purpose
underlying this procedural regime is the expedition of justice that constitutes
the completion strategy of the ICTY. The Chamber also concerns itself with
cases submitted to it by the Office of the Prosecutor of the ICTY, where
investigations have not been completed yet. The first of these cases came
into referral on September 1, 2005. [1542]
The Chamber also evolved what is called the Rules of the Road procedure,
in response to the widespread fear of arbitrary arrest and detention
following the conflict in Bosnia. Originally, the Bosnian authorities were
under an obligation to submit all war crimes cases for prosecution in Bosnia
to the Office of the Prosecutor of the ICTY, to determine whether the
evidence measured up to the required standards under International law,
before arrest could be effected. The review function then went into the
hands of the Special Department for War Crimes, within the ambit of the
Office of Prosecutor of the State of Bosnia, in 2004. If a given case has not
435

resulted in a confirmed indictment, and where it bears the mark of being

highly sensitive in the viewpoint of the prosecutor, the case passes to the
Chamber. If otherwise, it is tried before the district or cantonal court as the
case may be. If an indictment meets confirmation, the case remains with
such district or cantonal court.
The Special Tribunal for Lebanon
The Special Tribunal for Lebanon is an international tribunal, for the
prosecution of all those responsible for the assassination of Rafik Hariri,
the former Prime Minister of Lebanon, occurring on February 14, 2005,
under Lebanese Law.[1543] The tribunal also deals with those responsible
for a couple of other attacks on Lebanon, occurring between October 1,
2004, and December 12, 2005, in the event that they are proven to have
connections with the assassination of Rafik Hariri. Situated in
Leidschendam, near The Hague, the tribunal also has a field office in Beirut.
The Tribunal opened on March 1, 2009, with a three year mandate initially.
However, there has been no mention of a timeline within which the tribunal
was required to complete its work, thereby allowing it to operate
indefinitely.[1544]
Prior to the establishment of the Tribunal, the UNIIIC, a UN based
investigative commission, worked on the Hariri assassination. Called the
United Nations International Independent Investigation Commission, the
Security Council established the entity in February 2005. The UNIIIC
gathered evidence and assisted the Lebanese authorities to conduct their
investigations. Initially, the UNIIC implicated high-level Lebanese and
Syrian security personnel in Hariris assassination, but Damascus denied
having a hand in the event. Consequent to the report, four pro-Syrian
Lebanese generals were subjected to detention by the Lebanese authorities
for four years, without a charge in connection with Hariris assassination.
As a culmination of both, the report and a request from the Lebanese
government, a tribunal of international character was established with the
UN Security Council adopting resolution 1664 (2004).
The Special Tribunal, though, in its early set of activities, ordered the
release of the generals after it was ruled by one of the judges of the tribunal,
that there was insufficient evidence to justify the basis of their detention.
The Tribunal comprises of the Chambers, the Prosecutor, the Registry and
the Defense Office. The Chambers essentially comprise anywhere between
eleven and fourteen independent judges, one Pre-Trial judge, a Trial
Chamber and an Appeals Chamber. One international judge finctions as the
Pre-Trial Judge, and three judges, two of whom are international and one
436

Lebanese, function in the Trial Chambers. The Appeals Chambers

comprises five judges, of which two are Lebanese judges, and the
remainder three are international judges, as per Articles 7 and 8 of the
Statute of the Tribunal. The Prosecutor and the Registrar are appointees of
the UN Secretary General, conducted in consultation with the Government
of Lebanon, and the Head of the Defense Office is appointed by the
Secretary General in consultation with the President of the Tribunal, as
mentioned under Articles 11 to 13 of the Statute. Articles 2 to 4 state that the
proceedings before the Tribunal are essentially conducted in keeping with
Lebanese criminal law, and all courts have concurrent jurisdiction with the
tribunal, with the latter having primacy over the former.
The Tribunal officially opened on March 1, 2009, with no timeline set for
work to be completed. In March 2011, Antonio Cassesse, the President of
the Tribunal, had mentioned in the second annual report of the Tribunal, that
a major part of the Tribunals work would be completed by 2015.

PART IV: INTERNATIONAL ORGANIZATIONS

Chapter 16- International Organizations

With the burgeoning inter-relationships between states at the international
level, coupled with a need to retain a uniform system of anarchy, there has
437

been a significant degree of value attached to the creation and existence of

institutions at the international level. Called Intergovernmental
Organizations, these entities, both at the international and regional levels,
comprise sovereign states as their members, and are accorded legal
personality in the eyes of international law. Most such international
organizations are the product of treaties and conventions that function as a
Charter creating them. The term international organization is primarily
deployed to describe an organization set up as a consequence of an
agreement between two or more states.[1545] With the widening of the
scope and ambit of international law, the nineteenth century belief that only
states were subjects of international law is long gone in terms of its
significance and acceptability. States, without doubt, have come to remain
one of the most dominant and important actors under international law.
However, with the burgeoning of international organizations and several
other subjects, the domain of international law has widened to accommodate
international organizations within its ambit.
With diplomatic exchange turning out to be important means of state
interactions in the nineteenth century, international organizations grew out of
these diplomatic relations, as states found them to be the most prudent
means of dealing with changes and demands of international society and its
rapidly changing structure.
International organizations came into existence since 1815, but actually
gained importance only after the First World War, in terms of political
importance, and began to be accorded legal personality on a more recent
note. As early as in 1860s, the International Telegraphic Union, which later
became the International Telecommunications Union, and the Universal
Postal Union, came into existence. This trend soon led to the present day,
which sees the presence of numerous international organizations, including
within its spectrum huge organizations with massive global responsibilities
with almost universal membership, to considerably smaller ones that are
devoted to specific issues parochialized to suit the needs of the region or the
states involved.
In essence, however, there are some aspects that are common to every type
of international organization that have come into existence. Primarily, all
organizations are the result of a constituent instrument, which is oftentimes a
treaty. However, there are a few exceptions to this rule, such as the
Organization for Security and Cooperation in Europe which emanated from
the Helsinki Final Act, 1975, which was not a treaty but a domestic law.
Similarly, the Commonwealth was not the result of a treaty either.[1546]
438

The International Committee of the Red Cross is another entity worthy of

mention here, as it is essentially a Swiss Corporation without the
membership of other states, and has still gained a spot in the international
realm, construed as an international organization and accorded due respect
and importance by several states in the course of their references to it
through their treaties.[1547] The second feature is that membership to these
organizations is exclusively reserved for states alone, or at least primarily
for states. This rule is not without exception too, as several international
organizations such as the Food and Agricultural Organization,[1548] and the
Commission for the Conservation of Antarctic Marine Living Resources,
[1549] which allow other organizations upon which its members have
accorded special competence and powers, to be its members, thereby
allowing the European Union within its fold. In addition, there are also
organizations that allow non-state entities to join, in their capacity as
distinct customs territories, an example for which is the World Trade
Organization, which has admitted in addition to China, the Hong Kong
Special Administrative Region, Macao Special Administrative Region and
Chinese Taipei.[1550] Other examples for this genre of activity include the
World Tourism Organization and the World Meteorological Organization,
both of which have included China and the Hong Kong Special
Administrative Region as its members. There are organizations which
afford a separate associate membership rights to overseas territories of
members, while some other organizations allow non-state entities to
function as passive observers, without the right to vote. The third common
characteristic is the status of an international legal personality, which
accords the organization a status distinct and independent of its members.
Consequent to this feature, there exist certain privileges and immunities that
international organizations can enjoy. It is also possible for international
organizations to bear responsibility and liability, which in all probability
may give rise to ample complications, specifically as witnessed in the
collapse of the commodity agreement governed by the International Tin
Council in 1985, and the consequent controversy pertaining to member-state
liabilities.[1551] Lastly, most international organizations are financed by
the states that are members to it.
In terms of composition and structure, most international organizations have
an assembly that includes all its members- sometimes with voting rights, an
executive wing that includes some of its members for a period of time, and a
secretariat which is virtually the head of the organization itself.
When states create international organizations, it is usually for specific
purposes and consequently, they enjoy limited range of powers. It is
439

primarily for this sake that legal personality as a concept should be

understood in a relative perspective instead of an absolute understanding.
The organization, though considerably powerful, may be evidently
competent in certain spheres while lacking competence in certain other
spheres of action.[1552]
The accordance of legal personality to international organizations was taken
note of by the International Court of Justice, in the Reparations for Injuries
Case,[1553] which arose as a consequence of the murder of Count
Bernadotte, who was the United Nations mediator in Palestine in 1948. The
United Nations had arrived at a conclusion that Israel was negligent in that it
had neither prevented nor penalized the murderers, and therefore sought
compensation under the ambit of international law for the loss endured by
the death of their personnel. At the preliminary stage itself, the question
arose as to whether the United Nations had the competence under the law, in
other words, if it was a legal person bearing legal capacity to raise such a
claim. In specific terms, the question that was left at the disposal of the
International Court of Justice was as to whether, in the event of an agent of
the UN, while performing his duties, suffered injury in circumstances that
involved the responsibility of a State, can the UN as an organization have
the capacity to raise a claim against the responsible government with a view
to obtaining reparation due as a consequence of the damage caused to the
UN and to the victim. In dealing with the questions, the court had answered
in the affirmative.[1554] The United Nations was declared to be an
organization that possessed legal personality in principle, having functions
of such importance that it could not execute them without an international
personality. Therefore, in congruence with such personality to its credit, the
United Nations definitely possessed the competence under the law to bring a
claim of such cadre. Therefore, the claim for the loss was but a natural
corollary of the breach of the international obligation that was owed to it.
The second part of the question, i.e., whether the UN could raise a claim in
respect of the loss suffered by its agents, posed a little more difficulty for
the ICJ than the first question. Nevertheless, the Court asserted that the
organization had an implicit power to make such a claim, since the
organization could not function effectively without the assistance of its
agents who in turn, would not work with efficacy and loyalty unless they
were assured of being protected. In studying this decision, it is important to
note that the decision emanated from the assessment of an abstract question
as to the capacity to claim, as opposed to the actual facts of the murder of
Count Bernadotte. There was, however, a marked obstacle in the path of
enforcement of the decision, considering that the ICJ Statute stipulates under
440

Article 34, that only states are parties to contentious cases raised before the
Court, and hence enforcement became a difficulty. Nevertheless, the issue
was negotiated and settled, with Israel agreeing to compensate the UN
despite denying that it had an international obligation to compensate the UN.
This decision is of particular relevance in the context of International
Organizations, particularly because the reasoning depicts that there need not
be an express conferment of powers and rights upon the organizations by
their constituent charters, for certain aspects of their powers and stature may
be implied in contribution towards their efficient functioning.[1555]
A Historical Outline
The first actual instance in history, marking international cooperation
involving the bringing together of several states in action, was the 1648
Peace of Westphalia, an agreement that brought a 30-year religious conflict
in Central Europe to an end, while establishing the modern secular state
structure upon which European Politics pivoted.[1556] Following this
hallmark, about a whole century passed before the Congress of Vienna of
1815 brought the wars in Napoleons time, to an end, while at the same time
standing tall as one of the first organized attempts in the world, at regulating
international affairs while deploying conferences and negotiations as a
means.[1557] The emanating system proved to be successful, and is
credited with being an instrument that institutionalized the balance-of-power
approach underlying the international anarchical set up, and also for having
created a more or less formal international order.[1558]
With mankind advancing in bursts and spurts, what with developments like
the industrial revolution burgeoning in the international sphere, precious
little disturbed the arrangements until the outbreak of the First World War.
Till then, conferences in Europe were the only instances involving state
cooperation. In 1856, the Paris Conference took place, and in 1871, the
Berlin Gathering came to be, both of which essentially dealt with the issues
affecting the Balkans. Following these, in 1884-1885, a series of Berlin
Conferences took place, seeking to infuse a certain degree of order upon the
race for Africa that had begun evolving among states. No doubt
considerably helpful in organizing the actions of states, these conferences
were still inadequate in fulfilling the very job they had set out to perform.
The procedure of convening conferences was too temporary a means, and
did nothing to augment cooperation, because all they aimed at was setting
right the crisis they were called upon to address. Notwithstanding the fact
that states intended to cooperate, several delays came to pass, putting a
spoke in the wheel of expedited decision making. In addition, only certain
441

states that were invited to attend, could actually attend, and the decisions so
made by them would be a consequence of unanimous agreement, which
actually confined the value and utility that the system by itself had.[1559]
Slowly, non-governmental associations came into place, with the
International Committee of the Red Cross being founded in 1863, and the
International Law Association being founded in 1873. Though primarily
private in nature, these unions only depicted the pulse of the world
community, and its interests in collaborating with one another in specific
contexts and on specific issues.[1560] The 19 Century also marked the
evolution of several public international unions, which were for functional
requirements between governments of different states. These organizations,
such as the International Telegraphic Union of 1865 and the Universal Postal
Union of 1874, were primarily for infrastructural requirements, and
regulated matters such as communication and inter-state relations. This
slowly burgeoned into including other forms of inter-governmental unions,
dealing with different aspects such as transportation, health, economic
concerns and communication. Many of these associations opened up plenty
of avenues for the evolution of the present day international organizations,
since they paved the way for several new ideas such as voting, financial
contribution, conferences held with recurring periodicity and also the
creation of permanent secretariat wings in international institutions.
Following these events was the First World War, at the end of which the
League of Nations evolved. Its failure and in keeping peace and containing
the warring tendencies of states paved the way for the Second World War,
which ended with the creation of the United Nations. In the course of time
that has lapsed since the evolution of the United Nations, there have been
plenty of organizations and associations amongst states, at the universal,
international level, and the regional, specific level as well.
Some major International Organizations- Past and
Present
The League of Nations
In the beginning of the twentieth century, two power blocks emerged out of
the alliances built amongst the European Great Powers. These alliances then
came into effect at the beginning of the First World War, in 1914, thereby
bringing in most of Europe into the war. Thanks to the war and all its
ramifications, there was enough devastation in the form of unprecedented
casualty levels amongst civilians and members of the armed forces. World
over, the war had a considerably profound impact, and its effect was felt in
the social, political and economic systems of Europe, while at the same
th

442

time, denting the physical and psychological structures of the entire

continent. During the First World War itself, there were several states that
believed in bringing in a uniform system to avoid a repetition of the war.
[1561] The President of the United States, Woodrow Wilson, and his
advisor, Colonel Edward M. House, proposed and promoted the idea that
the League ought to be created and ought to function as a means of avoiding
a future war of a similar nature. The Fourteen Points for Peace penned down
by Woodrow Wilson reflected a similar ideology and pushed for the
creation of the League.
At the turn end of the First World War, there evolved a product of new found
urges on part of States to cooperate and avert warfare, in the form of the
League of Nations. The organization was a result of the Paris Peace
Conference that brought the First World War to an end. The League has the
distinction of being the first permanent international security organization,
whose principle mission was essentially the maintenance of world peace.
The forerunner of the League was the Inter-Parliamentary Union, which was
formed by peace activists William Randal Cremer and Frederic Passy, in
1889.
The League comprised the Assembly, the Council and the Permanent
Secretariat and was based in Geneva. It also had two essential wings,
namely, the Permanent Court of International Justice and the International
Labour Organization. In addition, its Covenant implicitly mentioned the
establishment of other ancillary bodies for the sake of addressing issues that
bore technical overtones. As a consequence, the League functioned with
several agencies and commissions. At the peak of its existence, it comprised
58 members, between September 28, 1934 and February 23, 1935. It had 42
founding members, and in the end, only 23 out of these remained members
until its dissolution in 1946.
The Leagues main goals, as it mentioned in its Covenant, included the
prevention of war using collective security, disarmament and the settlement
of international disputes by deploying methods such as negotiation and
arbitration. In addition, the League was a hallmark in history, considering
that it represented a paradigm shift in viewpoint and political ideology,
from the preceding few years.
The League, however, did not have its own armed forces, and therefore
depended upon the Great Powers to enforce its resolutions, to keep up all
the economic sanctions it ordered, to supply an army and to generally back
its actions whenever needed. Membership in the league was also affected in
the event that sanctions imposed were also capable of hurting the states that
443

were its members, thereby leading to their refusal to cooperate and comply
with them. Though there were a few notable successes, the Leagues
egregious failing put a spoke in its wheel of continuance, and proved
incapable of preventing aggression by the Axis states in the 1930s. When a
Jew, in 1933, brought a complaint stating that his rights as a minority were
being subject to gross violations by the German administration of Upper
Silesia, which in turn induced the Germans to postpone the enforcement of
the anti-Jewish laws in the region for several years until the relevant treaty
expired in 1937, consequent to which they flatly refused to renew the
Leagues authority any further, and then immediately renewed anti-Jewish
policies.[1562] With Hitler raising claims of how these clauses were
violative of Germanys sovereign rights, Germany withdrew from the
League, and was followed by other states donning aggressive roles. The
League fell silent on several events that led to World War II, such as
Hitlers remilitarization of the Rhineland, the occupation of Sudetenland and
Anschluss of Austria, both of which were acts forbidden by the Treaty of
Versailles. The League members themselves embarked upon a procedure of
rearmament, and in 1933, Japan simply withdrew from the League instead of
submitting to its judgment, just like Germany, and Italy followed suit in
1937. The final significant act as embarked upon by the League was the
expulsion of the Soviet Union in December, 1939, after it invaded Finland.
Coupled with these issues, was the fact that global representation was
absent, and the evident contradiction between the ideal of collective
security that underlay its establishment, and the actual relations between the
states.[1563] The onset of the Second World War was in essence the reason
for the Leagues final collapse, but plenty of inherent defects were
contributive to the death knell. The United States of America refused to join
the League, a move that in effect, stunted the power of the organization
itself. Nevertheless, the League of Nations still holds an important position
under international law and in the evolution of the present day scheme of
things where maintenance of peace and security are concerned.
The United Nations
The United Nations primarily aims at facilitating cooperation in
International Law, International Security, economic development, social and
political progress, human rights and the securing of world peace and order.
Founded in 1945, at the end of the Second World War, the United Nations
replaced the League of Nations in a bid to avert the likelihood of war, and
to sustain peace. Consequent to the same, the United Nations, in all the years
of its existence, has expanded its reach and ambit to include several
444

ancillary mandates that come within the fold of maintaining international

peace and security, to the point that it has widened its operations by
deploying several subsidiary organizations and ancillary bodies towards
performing its mandated obligations. With 192 member states, the United
Nations includes all the sovereign states in the world with the exception of
the Vatican City. Functioning with offices and bodies placed all over the
world, the United Nations and its specialized agencies decide on
substantive and administrative questions by conducting meetings regularly.
With the widespread acceptance and recognition of the fact that mankind
could not afford to suffer under the brunt of a Third World War, the United
Nations was installed in place of the League of Nations, in a bid to replace
the flawed institution functioning prior to the outbreak of World War II.
Franklin Roosevelt was the brain behind the terminology, having coined it in
an attempt to describe the Allied states in their relations with one another.
The term itself was officially deployed on January 1, 1942, with 26 states
signing the Atlantic Charter, furthering their pledge to keep their war efforts
sustained and continued.[1564] From August to October 1944,
representative authorities from China, France, the United Kingdom, the
United States and the USSR came together, outlining elaborate plans at the
Dumbarton Oaks Conference in Washington DC. Proposals emanated
therefrom, with points noted as regards the purpose of the UN, its
membership, organs and structural facets, and other related arrangements
that could plausibly contribute towards maintenance of international peace
and security and international cooperation. Following this, the Yalta
Conference took place, paving the way for opening membership to all
nations that had joined the Allies by March 1, 1945.[1565] Official
discussions that augmented the intention of creating such an organization
took more formal shape with the San Francisco UN Conference on
International Organization, on April 25, 1945. The conference witnessed the
meeting of minds among as many as 50 governments, and plenty of other
non-governmental entities that assisted in the process of drafting the UN
Charter. Finally, the UN came into existence on October 24, 1945, following
the ratification of the Charter by five permanent members of the UN Security
Council, namely, China, France, the UK, USA and the Soviet Union, and as
many as 46 other signatory states. Following this, the first meeting of the
General Assembly comprised representatives of 51 states, and took place at
the Westminster Central Hall in London, in January 1946, and the Security
Council took place at the Church House, London.
Following its establishment, the United Nations sought to be recognized as a
legal person, accorded with international legal personality, in the course of
445

its application to the International Court of Justice, in the Reparations for

Injuries Suffered in the Service of the United Nations case,[1566]
seeking an advisory opinion as to whether the United Nations had the legal
standing to bring a claim against a government, seeking compensation for the
loss caused by the states personnel.
Six official languages are deployed for all official work, namely, Arabic,
Chinese, English, French, Russian and Spanish. The United Nations has as
many as six principal organs that it deploys towards fulfilling its mandates,
namely, the General Assembly, the Security Council, the Economic and
Social Council, the Secretariat, the International Court of Justice and the
Trusteeship Council which at present is inactive.
The General Assembly: The General Assembly is the main deliberative
assembly, comprising representatives of all the UN member states. Meeting
annually in the course of regular yearly sessions under a president elected
from amongst all the member states, the General Assembly votes on several
questions. For votes on important questions, a two-thirds majority of all
those present and voting is necessary, specific examples for which include
recommendations on peace and security, election of members to organs,
admission of members, suspension and expulsion of members, budgetary
requirements and pressing concerns in the international realm. Questions
aside of the most important questions are addressed using a majority vote
procedure. Each state has one vote, and aside of resolutions pertaining to
budgetary questions, none of the resolutions are binding on member states.
The Assembly is free to make recommendations on any issues falling within
the scope of the United Nations except those that come within the purview
of the Security Council.
The agenda for each of its sessions are drawn up about seven months in
advance, commencing with the release of a preliminary list of items that are
to be included in the provisional agenda.[1567] Following this procedure
the provisional agenda is shaped up from this outline, approximately sixty
days before the session opens. Once the session starts, the final agenda is
adopted in a plenary meeting, where work is allocated to different
Committees, each of which submits a report back to the Assembly for its
adoption, either by consensus or by vote. The agenda has a numbered list of
items. The regular, plenary sessions of the General Assembly in terms of a
schedule, runs for three months, but due to additional work, the span of time
taken by each session tends to extend until just before the next session
commences.
The General Assembly votes on resolutions that are presented by
446

sponsoring states, in the form of statements that symbolize the pulse of the
world community in pertinence to relevant issues. In terms of a legal
character, these resolutions are not enforceable, particularly because the
General Assembly does not have enforcement powers in pertinence to
several issues- except on issues such as the final budget of the United
Nations. Nevertheless, these resolutions are of immense political value, and
are legally binding on the General Assembly in its operations. It is also
open for the General Assembly to make a reference of an issue to the
Security Council, in order to allow the evolution of a binding resolution.
Some of the most noteworthy resolutions of the General Assembly have
come to remain crystallized versions of state practice and reflections of
customary international law.
By way of certain resolutions, the General assembly has played a catalytic
role in contributing towards codifying and pinning down international law
in a structured manner. Resolution 177 (1947) directed the International
Law Commission to formulate the principles of international law as
recognized in the Charter of the Nuremberg Tribunal and in the judgment of
the Tribunal, a move that resulted in the official creation of the Nuremberg
Principles. Resolution 260 (1948) marked the onslaught of the Convention
on the Prevention and Punishment of the Crime of Genocide. Resolution
377A(1950) marked the Uniting For Peace endeavour, which indicated the
existence of a perception that the maintenance of international peace and
security sub-serves all conduct embarked upon under international law and
politics. Resolution 505 (1972) is of particular relevance to the question of
peace and security, considering that it deemed the threats to political
independence and territorial integrity as it happened to China, as threats to
peace. Consequent to this, the notion evolved that any threat to political
independence and territorial integrity would be deemed an anathema to the
principles outlined under Article 2(4) and 2(7) of the UN Charter, a
principle that has now come to occupy the exalted status as jus cogens
norms. The move was augmented by Resolution 2131 (XX) of 1965, which
brought to fore the Declaration on the Inadmissibility of Intervention in the
Domestic Affairs of States and the Protection of their Independence and
Sovereignty. Resolution 1514(1960) marked the entry into existence of the
Declaration on the granting of independence to Colonial Countries and
Peoples, through which the term self-determination was defined for the first
time by the United Nations. Resolution 2625 (XXV), of 24 October 1970,
witnessed the adoption of the Friendly Relations Declaration, enthusing
states into maintaining friendly relations with one another in order to
ascertain means for international cooperation and peaceful existence. The
447

earliest resolution governing the Law of Outer Space was Resolution

1962(1963), which in turn sparked off the creation of five treaties specific
to the issues concerning Outer Space. By way of Resolution 3068 (1973),
the Apartheid Convention opened for signature, while Resolution
61/295(2007) brought the Declaration on the Rights of Indigenous Peoples.
Resolution 3314(1974) is particularly relevant in international law for
having defined the term aggression, and bears ample relevance in the field
of international criminal law. With Resolution 62/149(2007), the General
Assembly called for a universal moratorium on Capital Punishment, with a
view of total abolition, and in the meantime, also called for the respect of
the rights of those in the death row, and called for those states that had
abolished the same, not to reinstate it.
The General Assembly has six main committees, numbered One to Six. The
first is the Disarmament and International Security Committee, the second is
the Economic and Financial Committee, third, the Social, Cultural and
Humanitarian Committee, fourth, the Special Political and Decolonization
Committee, fifth the Administrative and Budgetary Committee, and the sixth
is the Legal Committee. Each of these committees comprise of all members
of the General Assembly, and each elects a chairman, three vice-chairmen
and a rapporteur at the beginning of each regular session of the General
Assembly. With time, the committees and their responsibilities have
undergone plenty of changes. Until the latter part of the 1970s, the First
Committee was called the Political and Security Committee, or the
POLISEC, and the Fourth Committee used to deal with Trusteeship and
Decolonization matters. There was also a Special Political Committee that
dealt with some of the contemporary additional political matters at the time.
With the dwindling of trust territories and with the end of decolonization,
the Special Political Committee and the Fourth Committee became one. In
addition to these committees, there is the Credential Committee that is
charged with ensuring that all diplomatic credentials of individuals
functioning as UN representatives are fully in order. It comprises nine
states, each elected in the early part of each session of the General
Assembly. The General Committee is another, which functions as a
supervisory committee, entrusted with ensuring smooth functioning of the
Assembly, and comprises the President and Vice Presidents of the current
session of the General Assembly, and each of the chairmen of the six Main
Committees.
The General Assembly also has seven Commissions towards assisting its
functioning, namely, the Disarmament Commission, the International Civil
Service Commission, the International Law Commission, the United Nations
448

Commission on International Trade Law, the United Nations Conciliation

Commission for Palestine, the United Nations Commission on Human Rights
and the United Nations Peace-building Commission.
The Security Council: The Security Council, as its name suggests, is vested
with the duty of maintaining peace and security among states in the
international sphere. The Security Council is a considerably powerful unit
under the United Nations, especially since it has the power to make binding
decisions and resolutions that member states are obligated to follow, as per
Article 25 of the UN Charter. In comparison, other units of the United
Nations are free to make recommendations that do not have any binding
value on the member states. The Charter mentions that its powers include,
among other things, the establishment of peacekeeping operations, the
establishment of international sanctions and the authorization of military
action. The primary reason behind the Security Councils existence is the
urge to dispel the weaknesses that plagued the League of Nations in
rendering it incapable of maintaining peace and security. The prime aim of
maintaining this wing of the United Nations is to establish a setting that
allows quick responses to international concerns. In keeping with this goal,
the members are required to be present at all times at the UN Headquarters
in New York, so that the Security Council can meet any time, in the face of
any pressing concerns in international politics.
The Security Council comprises 15 members, of which 5 states are
permanent members, being China, France, Russia, the UK and the USA, and
10 non-permanent members who hold fort for two years at a stretch. The
five permanent members enjoy an exalted position, particularly flowing
from their status as founding members of the United Nations, pursuant to
their role in creating the organization itself. Chinas seat was originally
filled by the Republic of China, and with the stalemate emerging from the
end of the Chinese Civil War that came to be in 1949, two states emerged as
claimants to the seat in the United Nations. A decision was finally made in
1971, where the Peoples Republic of China gained foothold into the UN in
the Republic of Chinas original seat, while the new Republic of China
(Taiwan being the place it is based out of), lost membership in all UN
wings. Similarly, Russia acquired the seat that was originally the Soviet
Unions. The non-permanent members are chosen by regional groups, and
are confirmed by the UN General Assembly. The African bloc has three
representatives, and two representatives each represent the Latin Americas
and the Caribbean, Asia, West Europe and Others, and one representative
for the Eastern European bloc.
449

Consequent to the position occupied by the Five permanent members, they

each enjoy the exclusive right of exercising a veto, which allows each to
block the adoption of a resolution altogether, if the state so finds the
resolution unacceptable. Article 27 of the UN Charter indicates that the
Security Council makes decisions on all substantive matters that require the
affirmative votes of nine members. In effect, the veto is a negative vote.
Called the Great Power of Unanimity, the veto is a means for any of these
permanent members to prevent a proposal from being adopted. A veto is not
the same as an abstention, and the exercise of the latter by any of the five
permanent members does not amount to a veto. While this power can be
exercised for all substantive questions, it does not extend to procedural
matters, and therefore, a veto cannot be exercised to avoid discussions or
debates. In addition, a veto cannot be deployed by a state to defeat a
decision taken against itself.
Although the Security Council at any given time can have only fifteen
members, non-members are free to participate in discussions, where the
Council itself agrees to entertain such states considering their interests
which may be at stake. A President heads the Security Council, and his
duties include setting the agenda, presiding over meetings and generally
overseeing crises. Presidency rotates on a monthly basis, in alphabetical
order of the names of the member nations of the Security Council.[1568]
The President is permitted to issue Presidential Statements and Notes,
[1569] both of which are deployed as means to make declarations of
intentions, which can then be pursued by the Security Council.
As far as the responsibilities of the Security Council are concerned, all of
its duties come under the ambit of an umbrella term that angles towards
preserving international peace. Chapter Six of the UN Charter deals with
Pacific Settlement of Disputes, and entrusts the responsibility in the Security
Council to investigate any dispute, or any situation which may result in
international friction or give rise to a dispute. Consequently, the Council
may recommend appropriate procedures or methods of adjustment, if it
concludes that the situation prevailing may pose a threat to, or may even
endanger international peace and security. Recommendations under Chapter
Six do not bind the UN members. Save for self-help as a measure, there
isnt any means to enforce these resolutions, and therefore there is no
binding effect.[1570] Chapter seven grants the Council a wider cache of
powers, allowing the Security Council to take decisions on measures it
needs to indulge in, in pertinence to situations involving threats to peace,
breaches of peace and acts of aggression. All decisions taken under this
chapter bind members. Using Chapter Seven, the Security Council has taken
450

measures to undertake armed action in Korea in 1950 with Resolution 82,

while the Korean war took place; to deploy coalition forces in Iraq and
Kuwait in 1991, to impose a sanctions regime covering individuals and
entities associated with the Al-Qaeda, Osama Bin Laden and the Taliban,
wherever they may be located through Resolution 1267; and the most recent
endeavour to assist Libya in its peoples uprising against dictatorship,
through Resolution 1973 (2011), among a host of others.
The Security Council is vested with the duty to deal with collective security,
which in turn allows it to investigate situations threatening international
peace, to recommend procedures towards the peaceful resolution of a
dispute, to call upon other member nations to completely or partially
interrupt economic relations along with air, sea, postal and radio
communications, or to sever diplomatic relations, to enforce its decisions
militarily or any other means that appears necessary, and to avoid conflict
while retaining the focus on cooperation. Article 25 of the UN Charter states
that the Members of the United Nations agree to accept and carry out the
decisions of the Security Council, in accordance with the present Charter.
The fount of this authority iis Article 24, which grants the Council the
authority to act on behalf of the members while exercising its responsibility
for the maintenance of international peace and security. In addition, the
Security Council has the duty to recommend the new Secretary General to
the General Assembly.
Outside of the UN Charter, the International Criminal Court recognizes the
Security Council as the wing with the authority to refer cases to the Court,
where the Court could not otherwise exercise jurisdiction.[1571] The
power has been invoked twice, till date, with the first referral being made in
March 2005, for the situation prevailing in Darfur since July 2002, as Sudan
was not a party to the Rome Statute and therefore the ICC could not exercise
jurisdiction otherwise. The second is a more recent referral through
Resolution 1970 (2011), asking the ICC to investigate the Libyan
government, headed by Colonel Muammar Gaddhafi, and its violent
retaliation to the uprising in the state, amidst the 2011 uprisings in the
Middle East.
The Security Council has been the cynosure of world attention in particular
context of its reform. In a world with nearly 200 states, most of the members
of the international community find the representation at the United Nations
inadequate. In suggesting reforms, ideas have been thrown up to dismantle
the veto power, to expand permanent membership and to accommodate a
fairer representation of the geographical structure of the world in the
451

permanent membership of the Security Council. There hasnt been a

concrete decision for the present, although trends indicate a likelihood of
expanded permanent membership.
The Secretariat: The Secretariat, headed by the Secretary General and
assisted by a team of international civil servants placed world over, is the
head of the United Nations, in official terms. The Secretariat functions to
provide studies, information and facilities as needed by the United Nations
for their meetings, and also carries out other functions as designated and
directed by the Security Council. It functions to execute tasks when directed
by the Security Council, the General Assembly, the Economic and Social
Council and other UN bodies. The primary duties of the Secretary General
include the resolution of international disputes, the administration of
peacekeeping operations, the organization of various international
conferences, implementing the decisions of the Security Council and
engaging in consultations with member governments in pertinence to
different initiatives. The Office of the Coordinator of Humanitarian Affairs
and the Department of Peacekeeping Operations function as the key
secretariat offices. The Secretary General can inform the Security Council
of any issue that seems like a threat to international peace and security. The
Secretary General serves for five-year terms, each of which can be renewed
indefinitely, and he is appointed by the General Assembly upon the
recommendation of the Security Council.
The International Court of Justice: The International Court of Justice is the
primary judicial organ of the United Nations. The Court took over from the
Permanent Court of International Justice, in 1946, and was brought into
existence with the Statute of the International Court of Justice. The Court is
situated at the Peace Palace, in The Hague, the Netherlands. Vested with the
primary duty of adjudicating disputes between states, the ICJ has heard
matters relating to war crimes, intervention, genocide and ethnic cleansing,
nuclear weapon usage, the use of force, self-determination and the question
of unilateral declaration of independence, among a host of other questions of
law.[1572] The decisions of the ICJ bind only states party to the dispute,
and on none other, virtually rendering the precedents persuasive.[1573]
Enforcement of the decisions of the ICJ is left to the Security Council under
Chapter XIV, thereby making the enforcement subject to the veto of the
permanent members. In this respect, it seems to appear as though the
International Court of Justice does not quite enjoy the benefits of an actual
separation of powers.
The court comprises 15 judges who hold office for a 9-year term, and are
452

elected by the General Assembly and the Security Council, from a list of
qualified people nominated by national groups in the Permanent Court of
Arbitration.[1574] A judge may hold office for more than one term, and
elections take place every three years with one-third of the judges on the
roster retiring each time. As a rule, no two judges on the panel may be
nationals of the same state, since the membership of the Court is expected to
represent the main forms of civilization and of the principal legal systems of
the world, as Article 9 puts it. The judges of the ICJ are not allowed to hold
any other post, and are expected to maintain judicial independence.[1575]
While this is so, there have been events where the independence of judges
has been questioned. In the Nicaragua Case,[1576] the United States
indicated that it was not possible for it to present sensitive material to the
Court, since there were judges from states belonging to the Eastern bloc.
Judges are free to deliver judgments together, or individually, and this also
allows room for separate, dissenting opinions. The Presidents vote is the
deciding factor where there is an equal division of opinion. In the event of a
Judges passing in office, a judge of the same nationality is appointed for the
remainder of the term in his place. Ad hoc judges are also permitted to sit
on contentious cases before the court, as per Article 31 of the Statute,
whereby any party is free to nominate a judge of their choosing, allowing as
many as seventeen judges to sit on one case.
The jurisdictional ambit of the court comprises the authority to hear two
kinds of cases- those needing the court to exercise its contentious
jurisdiction, where states are in dispute with one another, and advisory
jurisdiction, where a point in law needs to be amplified with clarity. In
contentious cases, only states are allowed to be parties, although non-state
interests may form a considerably important part of the issues brought
before the court in the dispute. The outcome is a binding ruling that
mandates the state parties to follow in the set manner. Jurisdiction of the ICJ
is exercisable only based upon consent. Article 36 of the Statute outlines
four criteria upon which the Court may exercise jurisdiction. Clause 1 states
that parties may refer their cases to the Court, consequent to a special
agreement or a compromise, whereby consent plays a role as opposed to
compulsory jurisdiction. This form has come across as a rather effective
basis for the Court to exercise jurisdiction, since the parties concerned
themselves have a desire for the settlement of the dispute, and consequently,
may be more inclined towards obeying and complying with the decision.
Clause 1 also allows the Court to exercise jurisdiction over matters
specifically provided for in treaties and conventions in force at the time.
This is relevant because many modern treaties comprise a dispute resolution
453

clause, according the forum rights to the ICJ.[1577] Clause 2 allows states
to create optional clauses alluding to the Courts jurisdiction, and
subsequently its acceptance. Although titled compulsory, the access of
jurisdiction is purely voluntary. The extent to which the court can exercise
jurisdiction under this segment is also limited by the ability of states to
make declarations signifying reservations to the courts jurisdiction,
excluding from its purview certain kinds of disputes in the process of
rationae materia.[1578] Reciprocity is also a factor that can stunt
jurisdiction. Sixty-six states, as of date, have declarations in force.[1579]
Clause 5 stipulates that jurisdiction can be exercised based on declarations
as made under the statute of the erstwhile Permanent Court of International
Justice, and Article 37 of the statute transfers the jurisdiction under
compromise clauses in treaties that accorded the erstwhile PCIJ
jurisdiction. Lastly, jurisdiction in contentious matters may also be
exercised based on the principle of forum prorogatum, or the principle of
tacit consent. If the respondent state either accepts, or begins pleading on the
merits of the case, the court begins to exercise jurisdiction. This was held in
the Corfu Channel Case,[1580] where the Court held that a letter from
Albania, which stated that it submitted to the ICJs jurisdiction was
sufficient to grant it jurisdiction over the case.
Advisory jurisdiction allows the ICJ to offer advice on legal questions, to
specified bodies and agencies of the United Nations. A request is made to
the Court, following which it decides which States and Organizations may
offer useful information on the question posed. Then, these select states and
organizations submit either oral or written agreements. The idea is to allow
the Court to explain serious legal issues that may fall within the gamut of
their specific mandates. The Courts advisory opinions bear consultative
character, albeit quite influential and strong in terms of weightage. By nature
they do not bear any binding value, but, if the entities seeking such advisory
opinion mention through declarations, instruments or regulations, they may
be binding upon the parties seeking the same. Even though the opinions are
not legally binding, they hold ample weightage in that these legal opinions
are reflective of the Courts views on international law, and the reasoning
behind them. In arriving at these conclusions, the Court uses the same set of
procedures while adhering to the same rules that govern the process of
making its binding decisions in contentious cases, and therefore, are of
immense importance. The Advisory Opinions of the Court attain importance
in terms of status given that they are official pronouncements of the principal
judicial organ of the United Nations.[1581] Many a time, advisory opinions
have been brought under the scanner with allegations being leveled that in
454

truth, they are merely contentious cases brought in under the guise of seeking
an advisory opinion. One such example is the Nuclear Weapons Case,
[1582] where the World Health Organization first presented a request for an
advisory opinion, which was rejected since the organization was acting
outside the ambit of its legal capacity. Subsequently, another request was
presented by the General Assembly, which was accepted by the Court. The
central question essentially involved the legitimacy of using Nuclear
Weapons, but the court also dealt with several other concerns, such as the
question of the role of international judicial bodies, the ICJs advisory
function, the rules governing the use of force, international humanitarian law
and the status of the Lotus principles.
The Law applied by the International Court of Justice is as mentioned under
Article 38, as being the sources of law. It shall apply the law as explained
under international conventions, international customs, the general
principles of law as recognized by civilized nations, academic writing
reflecting the teachings of the most highly qualified publicists of various
nations, and decisions and determinations of courts, tribunals and arbitral
forums. Article 59 establishes that the ICJ is not bound by its own
decisions, and if anything, precedents only hold persuasive value before the
Court. The court is also free to traverse the letter of the law, transcending
into deciding the case in keeping with justice and fairness, through the
option of deciding the case ex aequo et bono, if the parties agree to such
effect, as per Article 38(2). Nevertheless, till date, the ICJ has never used
this option.
The procedural roadmap for the court is set out in the Rules of the
International Court of Justice, 1978. The case is lodged by the state which
moves the court first, called the applicant. The applicant state submits a
written submission, or memorial, outlining the basis upon which the court
may exercise jurisdiction, along with a detailed enumeration of all the
merits underlying the claim it makes. Following this, the respondent is
informed, and may accept the courts jurisdiction and file its own set of
written submissions or memorial in response, outlining its stance under the
law and on the merits of the case. In the event that the respondent does not
wish to accept the courts jurisdiction, the respondent state may also raise
Preliminary Objections, upon which the Court should rule first before
proceeding to the merits. The most commonly raised preliminary objections
include questions on the admissibility of the case itself, by deeming it either
not justiciable or incapable of being called a legal dispute. Other questions
raised at the preliminary level include the non-inclusion of all necessary
455

parties to the case. In all such events where preliminary objections are
raised, the court deals first with it. In the event that the case is found to be
admissible, the court proceeds to deal with the merits of the case. Once
hearings begin, either party is free to ask the court for Provisional or Interim
orders to maintain the status quo, while pending hearing of the case, as per
Article 41 of the Statute.
While a case is being heard, it is also possible for a third state to interject,
should it be true that its interests are affected, as per Article 62, where such
state professes having an interest of a legal nature. The ICJ may exercise its
discretion and allow the state to participate in the proceedings as a party.
Judgments are delivered in the form of opinions, which may be joint,
separate or dissenting. At any rate, the majority opinion prevails and
emerges as the decision, and states do not have the right to appeal.
Nevertheless, clarifications may be sought in respect of the meaning, scope
and ambit of the decision so passed, as per Article 60.
The Economic and Social Council: The ECOSOC, as it is called, is a body
that aids the General Assembly in promoting international economic and
social cooperation, and augments development in the same fields. Having
54 members, all of whom are elected by the General Assembly for a three
year term, the ECOSOC is headed by a President who holds office for a
one-year term. The President is chosen from amongst the powers of the
middle or small levels, as represented in the ECOSOC. The main functions
include information gathering, advising member states and making
recommendations on economic and social development. It also accords
policy coherence, and coordinates the overlapping functions of the UNs
subsidiary bodies.
Specialized Agencies of the United Nations: Along with the cache of
bodies established at the highest level, as the main organs of the United
Nations, there have been plenty of specialized agencies created with a view
to assist the major goals of the UN by dealing with different sectors at
different levels. The UN Charter allows each primary organ of the United
Nations to establish specialized agencies to assist it in fulfilling and
performing its duties. These specialized agencies are essentially
autonomous entities under the UN, and work with the UN and with each
other through the Economic and Social Council.[1583] They may or may not
have been created under the United Nations originally, but as and when they
are created, they are incorporated into the United Nations System by the
Economic and Social Council, pursuant to the course of action dictated
under Articles 57 and 63 of the Charter. There are presently 15 specialized
456

agencies working under the United Nations.[1584] The Food and

Agriculture Organization, called the FAO, is the UN endeavour to combat
hunger. It was established on October 16, 1945. The organization assists
both, developed and developing countries, and all nations come together as
equals to determine policy and agreements. The FAO does not concentrate
exclusively on food and agriculture, but also on forestry and fishery
practices, ensuring nutrition and food security for all states. The FAO has
191 states as members, and two associate members, namely, the European
Union and the Faroe Islands. The International Civil Aviation Organization,
(ICAO) founded in 1947, is another autonomous agency that assists the UN
by codifying the principles and techniques of international air navigation,
and also promotes the development of international air transport with legal
apparatus in order to ensure both, safety and orderly growth. The ICAO has
a Council that adopts standards and also recommends certain practices as
the acceptable standard, in pertinence to air navigation, prevention of
unlawful interference and also does the needful in facilitating bordercrossing procedures for international civil aviation. The ICAO also defines
the yardsticks for air accident investigations and transport safety, and has
also begun addressing environmental concerns. States that are party to the
Convention on International Civil Aviation, 1944, known famously as the
Chicago Convention are members of the ICAO. There is also the
International Fund for Agricultural Development (IFAD), which, was
established in 1977 as an international financial institution to assist
agricultural progress and development, consequent to the 1974 World Food
Conference. The IFAD assists the UN by tackling rural poverty in
developing countries. The International Labour Organization (ILO), is one
of the oldest specialized agency, having originated back in the days of the
League of Nations, in 1919. It is devoted to labour issues, and lays down
standards that states are expected to conform to under international law, in
relation to the labour practices in their municipal setting. The International
Maritime Organization (IMO), established in 1948, through the United
Nations, is an entity devoted to coordinating means of preserving and
promoting international maritime safety and related practices. The prime
aims include improving standards of maritime safety and the protection of
the marine environment by preventing pollution. The regulation of monetary
cooperation and financial stability is governed by the International
Monetary Fund (IMF), which also manages the international financial
network. It functions as a forum for negotiation and assistance to states on
all kinds of financial issues. The International Telecommunication Union, or
the ITU, is the oldest entity functioning as a specialized agency for the
457

United Nations, having originally been founded as the International

Telegraph Union in Paris, on May 17, 1865. The Union functions to
standardize practice world over, to allocate radio spectrums and organize
all interconnections between states, so as to allow and facilitate the making
of international telephone calls. In addition, the union also deals with
broadband internet, wireless technology, aeronautical and maritime
navigation, meteorology and astronomy-radio based and satellite based, and
broadcasting and next-generation networks. The ITU has 192 states as its
members, and as many as 700 Sector Members and Associates. The
UNESCO, or the United Nations Educational, Scientific and Cultural
Organization is a specialized agency established in 1946, to assist in
promoting international peace and security by offering collaborations
through education, science, culture and the heritage of the world. The idea
underlying its pursuits is the need to foster respect, tolerance and focus on
justice, the rule of law, human rights and all the fundamental freedoms
human beings are entitled to. Industrial development falls within the domain
of the UNIDO, or the United Nations Industrial Development Organization,
which functions to promote and speed up industrial development in all
developing countries, and all countries whose economies are in transition,
and the promotion of international industrial cooperation. With maintaining
and promoting competition, the UNIDO also promotes the need for an
environmentally sustainable industry, and in the process, serves to
accelerate economic growth, reduce world poverty and achieve the key
requirements of the Millennium Development Goals. The Universal Postal
Union, functions as an agency in respect of postal policies between member
nations. The World Bank Group deals with finances, particularly by making
loans to developing countries, in order to financially assist their
development programs with the key goal of reducing poverty. The World
Bank Group comprises the International Finance Corporation, the
Multilateral Investment Guarantee Agency, and the International Center for
Settlement of Investment Disputes. The World Health Organization
comprises as the coordinating authority on public health at the global level,
and is a successor agency of the Health Organization that belonged to the
League of Nations. The World Meteorological Organization deals with
meteorology for weather and climate, operational hydrology and related
geophysical sciences. Lastly, the UNWTO, or the United Nations World
Tourism Organization, functions as a forum for tourism policies. The
International Refugee Organization was a specialized agency of the United
Nations, and existed from 1946 to 1952. However, it went out of existence
with the onslaught of the UN High Commissioner for Refugees, which now
458

functions instead of as a specialized agency as a subsidiary organ of the

General Assembly of the United Nations.
Regional Organizations
Regional organizations are essentially composed of states that are
geographically, or ideologically, or both, geographically and ideologically
linked states. With the end of the Second World War, their creation became
quite a phenomenon, and progress since has been marked by significant
advancement. Following the Second World Wars end, the Cold War marked
a period of hostility and non-cooperation amongst members of the
international community. The Security Councils inability to contain a lot of
events during the Cold War led to the growth of regional defense based
alliances, such as the NATO and the Warsaw Pact, and the burgeoning of
bloc politics. Decolonization completed its sojourn, allowing for newer
states to emerge on the international scene. Although these states were
independent and affiliated to no political ideology, many of them evinced
keen interest in playing a significant, non-aligned role in world politics,
between the East and the West. Economically, the advent of globalization
brought the world closer, linking states in a way like never before, as newer
trade relations began to be forged, as part of the single grand economic
trading system that could no longer function independent of arrangements of
regional character. With time, this paved the way for political alliances and
socio-economic cooperation through the vehicles of regional organizations.
In essence, therefore, regional organizations are international organizations
with a parochial expanse, considering that they are bridled either by
geographic or ideological concerns. They involve membership of states, and
bring together these member states in creating one geopolitical entity, that in
terms of operations transcends a single nation state. The purpose is to
promote cooperation, economic and political integration through
cooperative dialogue, within states sharing a degree of geographical
contiguity, or, ideological unity, or both. These regional organizations are
particularly important, considering the extent of development and history
they themselves have contributed, since the end of the Second World War.
Most established regional organizations work along with the United
Nations.[1585]
Practically speaking, a state may work in collaboration with other states
through a regional organization in pursuance of different reasons and
intentions. The economic benefits from membership may involve fewer
trade restrictions, and may also result in comparative cost advantages. The
political side accords ease of clout and influence, and member states are
459

accorded a substantial increase in influence in the region. Furthermore,

membership in such kinds of organizations also affords a certain sense of
security, since it is evidently easier a means to resolve political differences.
Another reason why states prefer cooperation through regional organizations
is the fact that they stand for democratic values, and in turn function to assist
one another to promote and uphold democratic values. These benefits have
been seen to overtake the only two drawbacks, namely, the sacrifice of a
certain degree of sovereignty, and sometimes, the need to be subservient to
other powers in the same arena.
The Organization of American States: The American continent has the
Organization of American States, which came into existence after the
Second World War, following up the work of the prior established PanAmerican Union and other inter-American Conferences, held since as early
as 1890. The OAS comprises two treaties, the 1947 Inter-American Treaty
of Reciprocal Assistance, called as the Rio Treaty and functioning as a
collective self-defense mechanism, and the Pact of Bogota, 1948, which is
actually the original OAS Charter, subsequently amended.[1586]
Comprising 35 members, the OAS is a collective security organization, with
the underlying notion that an attack against one is an attack against all of
them. It comprises a General Assembly which deals with all kinds of issues,
being the supreme organ, a Meetings of Consultation of Ministers of Foreign
Affairs of each member state, which is vested with plenty of powers, and a
Permanent Council that functions as a secretarial entity performing political
functions subject to the authority of these three wings. In addition, there are
plenty of subordinate organs that aid its functioning. The OAS is also
credited with having adopted a Human Rights Convention. It is considered
one of the most developed regional organizations outside Europe.
The Arab League: The Arab League, established in 1944, brings together
several states of the Middle East and North Africa. The League comprises
22 members in all, and four observers. The main goal underlying its
establishment is to draw closer the relations between member States and
co-ordinate collaboration between them, to safeguard their independence
and sovereignty, and to consider in a general way the affairs and interests of
the Arab countries.[1587] The Arab League functions with the assistance of
institutions such as the Arab League Educational, Cultural and Scientific
Organization and the Economic and Social Council of the Arab Leagues
Council of Arab Economic Unity. The League aims to promote the political,
economic, cultural, scientific and social programs to orchestrate the
development of states in the Arab world. It primarily works to coordinate
the policies of its member states, while deliberating on issues of common
460

concern, to settle disputes and to limit conflicts. The states that are members
of the League each have one vote in the Council of the League, and its
decisions bind only those states that voted for the same. All members of the
League are members of the Organization of the Islamic Conference, and the
members of the Gulf Cooperation Council and the Arab Maghreb Union are
members of the League. The Arab League has played a rather important role
in shaping up the curriculum for schools in the region, and has also done
plenty to advance the position of and role played by women in Arab
societies, in addition to promoting welfare of children, preserving cultural
heritage and generally fostering good relations amongst its members. 2011
marked a milestone in the Arab Leagues history, as Libyas membership
was suspended in the wake of the 2011 Libyan uprising, as the League
frowned upon the use of force against civilians at the behest of a draconian
leader intent on retaining his power in pursuit of a tyrannical regime. The
League is extremely rich in terms of resources, considering the reserves of
oil and natural gas in certain member states, along with fertile lands in
Sudan, which is often called the food basket of the Arab World. A
burgeoning tourism industry and a strong telecom industry in different parts
of the Middle East and North Africa is a baffling development as well,
adding to the exchequer of the Arab League. In principle, the Arab League is
a chip of the same block as other international organization, considering that
political, economic and social aims drive the organization. The difference
lies in the fact that the League has not been quite as successful as it should
have, in achieving regional integrations. This flows from the fact that the
organization does not bear direct relations with citizens, as is the case with
the European Union.
The European Union: Europe was the hub institutional development of
regional fervor, after the Second World War. The European Economic
Community made its appearance for the sake of economic, social and
political cooperation amongst states in Europe.[1588] With time, the
community, later named the European Union, has come to remain one of the
most important regional organizations in the world, having considerable
supranational overtones. The Community was a product of three
communities being brought together, namely, the European Coal and Steel
Community 1951, the European Atomic Energy Community 1957 and the
European Economic Community 1957. In terms of an aim, the European
Union functions to create a singular, unified market, holding common
external tariffs without any internal tariffs and quotas. It also aims at
ensuring free movement of labour and capital. It comprises 27 member
states, and operates through a hybrid system of supranational independent
461

institutions and intergovernmental decisions, and functions through

important institutions such as the European Commission, the Council of the
European Union, the Court of Justice of the European Union and the
European Central Bank. The European Parliament is elected every five
years by the citizens of the European Union. The Union has, so far,
functioned to ensure the free movement of goods, people, services and
capital,[1589] and has also enacted legislation on justice and home affairs,
while maintaining common policies on trade,[1590] agriculture,[1591]
fisheries and regional development.[1592] The EU also has a monetary
Union called the Euro-zone, having seventeen member states. With the
assistance of the Common Foreign and Security Policy, the European Union
has developed a role, albeit a little limited, in international relations and
defense. The European Union is now represented at the UN, the WTO along
with the G8 and the G20.
The Council of Europe: The Council of Europe, which was created in
1949, is another important regional organization in Europe. The Council
aims to promote cooperation between all European states, specifically in
pertinence to legal standards, human rights, democratic advancement,
promotion of the rule of law and cultural cooperation. Founded in 1949, the
Council has 27 member states, and is separate from the European Union.
The Council does not make any binding laws though, although it shares other
aspects with the European Union. The Council has the European Court of
Human Rights which enforces the European Convention on Human Rights,
and the European Pharmacopoeia Commission, which lays down the basic
standards for pharmaceutical products in Europe. It also has the
Commissioner for Human Rights, established as an independent institution
within the ambit of the Council of Europe, for the purpose of dealing with
promotion of awareness and respect for human rights amongst member
states. The Council has prepared several conventions and protocols, in
pursuance of its duties under Articles 15 and 16 of the Statute of the Council
of Europe. Some of these conventions and protocols include the European
Convention for the Protection of Human Rights and Fundamental Freedoms
of 1950, and the European Social Charter of 1961, and a host of agreements
that deal with social, cultural and educational issues.
The Organization for Security and Cooperation in Europe: Also known as
the OSCE, the Organization for Security and Cooperation in Europe was
created in 1975, and is the worlds largest organization devoted to security
and related matters. It deals with issues such as arms control, human rights,
freedom of the press and democratic values. The organization is accorded
the status of being an ad hoc unit under the ambit of the UN Charter,
462

particularly Chapter VIII. It functions with early warning systems, conflict

prevention, crisis management, post-conflict rehabilitation and dispensation
of assistance for security requirements. It comprises 56 states, and emerged
during the Cold War era as an East-West forum. It is essentially devoted to
the responsibility of conflict prevention, and has an Office for Democratic
Institutions and Human Rights, and monitors elections.
The North Atlantic Treaty Organization: The NATO, or the North Atlantic
Treaty Organization binds 28 states in Europe, and also the United States of
America and Canada.[1593] It was established in 1949, as a Western
Alliance seeking to counter any possible threats from the USSR. The NATO
is essentially devoted to issues pertaining to threats to their territorial
security and political independence as per Article 4, if any, having
understood that an armed attack against any one of the members is equal to
an attack against all of them as per Article 5.
Other organizations in Europe: The regional organizations in Europe also
include the Euro-Atlantic Partnership Council, as established in 1997, and
the Partnership for Peace program of 1994, which brings the Euro-Atlantic
Partnership Council and the OSCE states together in a framework that seeks
to promote peace. The Commonwealth of Independent States, comprising
erstwhile Soviet Republics, as originated during the break-up of the Soviet
Union, is also an important organization in Europe. It is more a symbolic
organization dealing with issues pertaining to trade, finance, lawmaking and
security, and promoted cooperation in promoting democracy. The CIS is
also a valuable association for its member states in that it seeks to augment
cooperation in prevention of cross-border incidents of crime. The CIS also
participates in the UN peacekeeping forces.
The Organization of African Unity: Established on May 25, 1963, the OAU
as it is called, was the original organization governing the African states in
their endeavour for regional association and integration amongst one
another. The OAU was essentially created with two basic aims underlying
its existence, namely, to promote the ideals of integrity, unity and solidarity
amongst all the states in the African continent, and, to eradicate all kinds of
colonialism as it existed at the time of its establishment, and to assist states
emergent from under colonial rule in pursuing a successful journey as a
sovereign state. In addition, the OAU also sought to ensure that human rights
were guaranteed, the living standards of all African citizens be improved,
and to settle disputes amongst members through peaceful negotiation. After
several states began attaining independence, differing opinions resulted in
two divergent views taking distinct shape in the form of the Casablanca
463

bloc, led by Kwame Nkrumah of Ghana, who wanted to have a federation of

African states, in 1961; and the Monrovian bloc, led by Senghor of Senegal,
who believed that unity could be achieved, but only gradually and in stages
through promoted economic cooperation, and did not believe that a political
federation would succeed. The dispute eventually resolved when the
Emperor of Ethiopia, Haile Selassie I, invited both the groups to Addis
Ababa, and successfully established the OAU, having its charter signed by
32 states. The Organization functioned with some autonomous agencies,
such as the Pan-African Telecommunications Union, the Pan-African Postal
Union, the Pan-African News Agency, The Union of African National
Television and Radio Organizations, the Union of African Railways, the
Organization of African Trade Union Unity and the Supreme Council for
Sports in Africa. The Organization, however, did not succeed in lasting
long, since it was deemed a bureaucratic entity, which failed to enforce its
decisions, and lacked armed forces. The OAU hadnt done anything to keep
civil wars in Nigeria and Angola in check, and instead followed a staunch
policy of non-intervention. It was discredited for having done too little
towards safeguarding the human rights of people in Africa, and was finally
disbanded in 2002, and replaced by the African Union.
The African Union: The African Union is the successor entity of the
Organization of African Unity, and was established on July 9, 2002. It
comprises 53 member states, with only Morocco as the only all-African
state that is not a member. The key objectives of the African Union include
the goals of speeding up the political and socio-economic integration of the
states in the continent, the promotion of common positions on issues of
interest to the African continent and its peoples, the achievement and
sustenance of peace, security and unity in Africa, and the promotion of
democracy, good governance and human rights in Africa. It comprises
political and administrative wings, with the Assembly as the highest
decision-making organ, comprising all the heads of states of the members of
the African Union. The AU comprises a representative body, called the Pan
African Parliament, comprising 265 members as elected by each member
states national parliament. Aside of these, the other machinery of the
African Union include the African Union Authority, which functions as the
secretariat of the African Union; the Executive Council, which comprises
foreign ministers and prepares decisions for the Assembly; the Permanent
Representatives Committee which comprises ambassadors to Addis Ababa
of the AU member states; the African Court of Justice which functions to
rule on disputes between states and assists the interpretation of AU treaties;
the Economic, Social and Cultural Council which functions as a civil
464

society consultative wing, the AU Commission which functions as the

secretariat to political structures; the African Commission on Human and
Peoples Rights for the protection, promotion and preservation of Human
Rights; the Peace and Security Council for the purpose of maintaining
collective security aims and functions with an early warning arrangement to
permit timely and effective responses to conflicts and crisis; and the New
Partnership for Africas Development which works towards advancing the
member states of the Union. In addition, three financial institutions, namely,
the African Central Bank, the African Investment Bank and the African
Monetary Fund also function within the AUs framework.
The Latin Union: The Latin Union is an organization devoted to bring
together states using the Romance Languages, with the underlying aim of
protecting and promoting the cultural heritage that brings different identities
of the Latin and Latin-influenced segments of the world, together.
Established in 1954, the institution has remained in operation officially
functioning from 1983, with 36 members. Membership is open to any state
that has an official language derived from Latin that is used in education or
in mass media or daily living, or in the event that it has a sufficient existence
of significant literature in a Latin-derived language, in the form of press and
publication in a Latin-derived language, or having direct or indirect
inheritance of the Legacy of Ancient Rome, following cultural education of
Latin-derived foreign languages and societal organizations on the legal side,
fostering respect for fundamental liberties and human rights. The
organization comprises the Congress which comprises all representatives of
member states, the Executive Council which has 12 member states and
functions as the administrative wing, and the General Secretariat which
deals with the execution of the programs and implementation of decisions of
the Congress and the Executive Council in pertinence to budgetary matters
and general directions.
The Caribbean Community: The Caribbean Community is an organization
comprising 15 Caribbean nations and dependencies. With the main purpose
being the promotion of economic cooperation among its members, the
Caribbean Community seeks to safeguard an equitable sharing regime
among states of all benefits of integration, and also endeavours to
coordinate foreign policy.[1594] The Caricom, as it is called, deals with
coordination of economic policies and working towards development
planning, and also deals with the preparation and implementation of
projects for less-developed states within its ambit and control, while
functioning as a single market for its members, and also handling trade
disputes in the region. The Caribbean Community comprises the Secretariat,
465

a Secretary General, along with a Deputy Secretary General and a General

Counsel.
The CENTO: The Central Treaty Organization, referred to as the CENTO,
was originally called the Middle East Treaty Organization or the Baghdad
Pact, adopted in 1955, between Iran, Iraq, Pakistan, Turkey and the United
Kingdom. Dissolved in 1979, the CENTO remained for a period of time
during the Cold War, and was one of the least successful alliances built up
during the Cold War era. Fundamentally modeled after the NATO, the
CENTO essentially functioned to foster mutual cooperation and protection,
and non-intervention in the affairs of other states. The idea was to keep the
Soviet Union in check, by maintaining a stronghold over power with a
couple of states maintaining an American front, to the southwestern side of
the Soviet Union, along with the underlying motive to prevent Soviet
expansion into the Middle East.[1595] It was dissolved in 1979.
The SEATO: The South-East Asia Treaty Organization was established with
a view to pursue and attain collective defense in South East Asia, and was
created by the Manila Pact, or the South East Asia Collective Defense
Treaty, signed in 1954, at Manila. The SEATO was established to put a stop
to communist gains in South East Asia, but is oftentimes touted to be a
failure since internal conflict and disputes amongst members resulted in the
unsuccessful usage of its military prowess. However, on the flipside, the
cultural and educational programs funded by the SEATO have gone a long
way for South East Asia. It lasted only for a short 23 years, and was
dissolved in 1977 by disinterested members who began withdrawing
membership.
The ASEAN: The Association of South East Asian Nations is the product of
a geopolitical and economic association of 10 states in South East Asia,
formed in 1967. The ASEAN is primarily established for the sake of
acceleration of economic growth, social progress, cultural development and
the protection and preservation of peace in the region, in a bid to provide
opportunities for members to discuss their differences peacefully.[1596]
The policy making process of the ASEAN is vested with the summit, which
comprises all the Heads of State of the members, and also a Coordinating
Council comprising Foreign Ministers, as per Articles 11 and 12 of the
Charter. There are also some community councils and sectorial ministerial
bodies devoted to assisting the functioning of the ASEAN.
The SAARC: The South Asian Association for Regional Cooperation marks
the coming together of states in South Asia in furtherance of an intention to
cooperate regionally. Founded in 1985, the SAARC is essentially devoted
466

to the economic, political, social, scientific and cultural development of

states in South Asia, with ample emphasis on collective self-reliance and
sovereign power. There are 11 broad areas of cooperation, which include
agriculture; education, culture, and sports; health, population, and child
welfare; the environment and meteorology; rural development (including the
SAARC Youth Volunteers Program); tourism; transport; science and
technology; communications. The key objectives of the association as
mentioned in Article 1 of the Charter include the promotion of the welfare
of the people of South Asia and to improve their quality of life; the
acceleration of economic growth, social progress and cultural development
in the region and to provide all individuals the opportunity to live in dignity
and to realize their full potential; the promotion and strengthening of
collective self-reliance among the countries of South Asia; the contribution
to mutual trust, understanding and appreciation of one another's problems;
the promotion of active collaboration and mutual assistance in the
economic, social, cultural, technical and scientific fields; strengthening
cooperation with other developing countries; strengthening cooperation
among themselves in international forums on matters of common interest;
and cooperating with international and regional organizations with similar
aims and purposes. The SAARC has 8 member states and 9 observers. The
SAARCs Free Trade Area agreement is worthy of mention, having been
created in 2004, it functions to assist free trade in a zone comprising nearly
2 billion people.
The ANZUS: The Australia, New Zealand, United States Security Treaty
(ANZUS) is an association of Australia, New Zealand and the United
States, and is a military alliance, binding the three states in a bid to
cooperate on defense matters in the Pacific Ocean. In present context, the
Treaty has come to have security implications in the face of attack, if any, on
the region. The ANZUS does not have an integrated defense structure, and
does not have any armed forces at its command. Nevertheless, the members
indulge in joint activities that include plenty of military activities of
different levels and stages.
The Commonwealth of Nations: The Commonwealth of Nations is an
organization comprising 53 states, all of which were formerly under British
colonial rule. The member states function within the ambit of common
values and goals, as mentioned in the Singapore Declaration, and support
ideals of democratic values, human rights and good governance, free trade
and multilateralism and the rule of law and peace.[1597] The
Commonwealth is not a political union, but just an associational network of
states with divergent social, political and economic structures sharing
467

common values and being deemed equal in status. The permanent

Commonwealth Secretariat carries out the activities, with the Secretary
General heading it. The Commonwealth also serves as a forum for several
NGOs, being called the Commonwealth Family. It also holds the
Commonwealth Games. The main aim is to foster unity through a stream of
activities that includes sports, culture, literary heritage and political
opinion.

PART V: NON-STATE ACTORS

Chapter 17- Understanding the term NonState Actors

The term Non-state actors under the ambit of international relations, and
slowly now, in international law, refers to all actors at the international
level which are not states. As far as a classification is concerned, the scope
and ambit of the term is generally wide enough to include non-governmental
organizations, multinational corporations, the international media, violent
non-state actors- which includes armed groups and criminal organizations,
religious groups and International Diaspora communities.[1598]
The term has been put to use rather actively in development cooperation, as
mentioned under the Cotonou Agreement,[1599] as entered into between the
468

European Union and Africa, Caribbean and Pacific Countries. However, the
term refers to civil societies, economic and social partners and the private
sector, considering that the scope and ambit of the context underlying the
deployment of the term is in the light of development cooperation and
development projects.
With the end of the Cold War, plenty of non-state actors began to make their
presence felt in the field of international relations. This paved the way for
the creation of a theory, titled the Cobweb Paradigm in International
Politics, which believes that the traditional State of Westphalia suffers an
erosion of power and sovereign strength, because of the onslaught of nonstate actors.[1600] As a subject of much debate, the theory surmised that the
advent of non-state actors in International Law was a product of
globalization, and their existence threw a challenge to the territorial
parochialism and sovereign control that states enjoyed. This was partly
consequent to the fact that such entities operated without heed to border
confines, and operate with effects that have transnational overtones. A
multi-national corporation is not as concerned about the interests of the
home-state or host-state leave alone infusing policies to assist pursuance of
these interests, as it is concerned about its own interests and quests for
advancement. The same goes for Non-governmental organizations, which
instead of one countrys concerns, actually seek to question the states
sovereign control over its own internal matters in the event of societal
concerns and social evils. Violent groups and armed groups that deploy
force on a protracted basis only to pursue their campaign of antagonism
directed against either all of humanity, or a particular gubernatorial
ideology. Religious and Diaspora groups and communities do not worry
about sovereign power as a factor, because their aim is to cater to a stream
of religious or perceptive ideology and to promote the same as a belief.
Of all these different wings constituting the category, the violent non-state
actors are the most difficult to handle, amongst all. Their violence and
antagonistic policy targeting gubernatorial ideology and governmental
authority in different parts of the world simply augment the difficulty in
pinning responsibility and pulling them up in international law. Some of
them operate with state support, but it is only too obvious that no state
would come forward to accept responsibility for being the puppet master
behind a violent group. In this background, it becomes exceedingly difficult
to determine which courts have jurisdictional competence and which dont.
Though sometimes in operations, the violent non-state actors may direct
their violence towards only one target and all its victims may be within the
ambit of one state, the fact that they have no state affiliation, and tend to
469

work in what is known commonly as a global network makes the handling

of their liability question a tad more difficult. Sometimes, these conflicts
tend to transpire between states and non-state actors, and also between
some non-state actors themselves. International law has norms that only
govern the use of force and its prohibition, intervention and peacekeeping
solely with the preconceived notion that only states are its subjects. With the
advent of international actors in the form of such non-state actors, there has
been a marked complication of things in international law and international
relations.
A dictionary definition simply puts the term in perspective as meaning
anything other than a state that acts in the international realm. Nevertheless,
the term definitely conjures up a certain cadre of ideas, with some believing
that it refers to violent entities, and some perceiving it only means civil
society. Per se, their evolution and existence is certainly not a new
phenomenon in international relations, although, primarily deemed
economic. On a more recent note, however, Violent Non-State Actors are
accorded sustained interest and importance amongst academia and political
circles.[1601] Most violent non-state actors arrive in place consequent to
state failure or weakness, coupled with a breakdown of administrative
machinery, and tend to derive from the weakness of the states themselves, as
was best exampled in the case of Afghanistan, Iraq, Somalia and even
Sudan. Simply put, the categorization stems from the perception that only
states are subjects of international law and international relations.
Consequent to this, it seems clear that the classification is an umbrella term
encompassing international organizations, individuals and any actor in the
international arena that is not a state. However, with a distinct
categorization for individuals in the form of human rights and international
criminal responsibility, and for international organizations in the form of
international legal personality and the status as a specific person, this leaves
one segment uncovered as a separate genus, namely, the remnants composing
the segment labeled as non-state actors. Typically, the species that occupies
the place offered by the epithet, has now come to be known as the violent
non-state actors, donning the mask of what is commonly known today, as
terrorism.

470

Chapter 18- Peaceful Non-State Actors

Considering the fact that the term non-state implies every entity that is not
a state, the term can be taken to include individuals, international
organizations, non-governmental organizations, International Diaspora
communities, multinational corporations and religious groups. However,
with individuals and international organizations carving their own niches
under the ambit of international law, the remainder entities are clubbed
together under the umbrella term. Another wedge must be drawn, dividing
the non-state actors into two basic divisions, one being the peaceful side,
and the others, the violent side. The impact, presence and role of each one
of these non-state actors is of significant value in shaping the world
community into taking the form and shape it has today. Non-governmental
organizations such as the Amnesty International, the Human Rights Watch
and the Transparency International have such a massive presence in
international relations, international law and politics, considering their role
in compiling data, pointing out and remedying human rights violations and
tackling the ugly impediment of corruption. Multinational corporations are
virtually the face of modern economic structures world over, having made
their presence felt with the sudden advent of globalization and
liberalization. Today, the world lives in an environment of consumerism
created by the onslaught of several companies that pander to every need of
the contemporary human being. Religious groups have taken a new colour,
as travel and communication has opened up avenues to allow people to
embrace new cultures, new faiths and practice new religious ideology. It
also comes with the added benefit of social-service, as several religious
groups preach service as a means to attain a higher unity with the maker.
Diaspora communities have encouraged the growth of a phenomenon better
known as transnational politics, a new form of political practice that goes
beyond the territorial confines and border demarcations of the modern day
world. As for the violent non-state actors, their presence has been felt
world over, and their writing on the wall is up for everyone to see, as armed
groups don varied hats, from rebellion to terror. Each of these entities has
made a significant impact on world politics and international law.
Non-Governmental Organizations
NGOs, or Non-Governmental Organizations refer to those organs
471

established by individuals- whether natural or artificial in their personalityand operate completely devoid of governmental involvement. Primarily,
these organizations do not have affiliations with the government, and do not
have any governmental status. Sometimes, it is possible that they may derive
financial support and assistance from the government, in which case they
ensure that the government does not participate in the operation of the
organization through representatives. The term is generally used for
organizations of such nature, with an aim of social nature. There is no
universally accepted definition of the term, so to speak. The World Bank
defines Non-Governmental Organizations as being private organizations that
pursue activities to relieve suffering, promote the interests of the poor,
protect the environment, provide basic social services or undertake
community development.[1602]
The role and significance of non-governmental organizations in the
international realm goes back to about 1839.[1603] By about 1914, there
were about thousand-odd NGOs.[1604] At that time, NGOs were extremely
important in assisting the anti-slavery movement, and the movements for
adult suffrage, and finally gained the height of their status during the World
Disarmament Conference.[1605] In practice, though, the terminology
accorded to these organizations came into use only with the advent of the
United Nations in 1945, where Article 71 of its Charter, under Chapter 10,
spoke of allowing a consultative role for organizations that are neither
governments, nor member states, calling it the consultative status. The
earliest definition of the term was mentioned in Resolution 288(X) of the
ECOSOC, in February 1950. It noted that an NGO meant any international
organization not founded by an international treaty. International documents
have taken note of the role of NGOs in the pursuance of their goals, and in
turn, have secured such organizations a consultative status with the United
Nations.[1606]
As far as the kinds of NGOs are concerned, based on the objectives, there
are charitable NGOs, service oriented NGOs, empowering NGOs, vigilante
NGOs, campaigning NGOs, operational NGOs and youth driven NGOs.
Based on the scope of operations, there are different levels, such as citywide, state-wide, country-wide, international, and regional.
Most NGOs receive funding from different sources, such as corporate
businesses that fund such endeavours as part of their corporate social
responsibilities, government grants and donations from the public. They are
usually accorded legal personality based on the laws of the home state.
While some NGOs remain unincorporated and voluntary organizations, most
472

organizations register themselves with the law in the form of trusts,

charities, foundations, companies not for profit, or under special society
laws, as it is registration that allows them to enjoy the exalted status of
being a legal person. Per se, NGOs are not subjects of international law, as
there is no specific legal regime governing their existence and operations.
The only exception to this norm is the case of the International Committee of
the Red Cross, which is governed by the Geneva Convention in pertinence
to some issues. A regional treaty regime, drafted by the Council of Europe
in 1986, called the European Convention on the Recognition of the Legal
Personality of International Non-Governmental Organizations governs
NGOs in Europe, and lays down the basic standard for existence and
operations in Europe. Most NGOs derive legitimacy for their existence on
account of the freedom of association, which is a civil right of all
individuals.
The Amnesty International is a prominent international organization devoted
to the cause of conducting research and generating action to prevent and end
grave abuse of human rights, and to demand justice for those whose rights
have been violated.[1607] It was founded in 1961, and has since worked in
the field of human rights, by drawing attention to abuses of human rights,
violations of human rights, and by actively campaigning for the compliance
with international laws and standards. The primary aim is to mobilize
public opinion in order to put pressure on governments that turn a deaf ear
to the violation of human rights in their territories.[1608] The Amnesty
International enjoys the longest history and the most prominent degree of
recognition, having set standards for the human rights movement that has
gained momentum world over.[1609] The Amnesty International deals with
six specific areas of human rights, namely: womens, childrens, minorities
and indigenous rights; ending torture; abolition of the death penalty; refugee
rights; prisoners rights and the protection of human dignity. Aside of these,
it has endorsed its key objectives as being the abolition of the death penalty,
tackling extrajudicial executions and disappearances, ensuring prison
conditions to be on par with human rights standards, ensuring free and fair
trials to prisoners, ensuring free education to children worldwide, ensuring
decriminalization of abortion and fighting impunity from different systems of
justice, ensuring the end of recruitment and use of child soldiers, ensuring
the freedom of prisoners of conscience, ensuring the promotion of rights for
marginalized communities, protecting the rights of the LGBT community,
preventing torture, ill-treatment and unlawful killing in armed conflicts.
[1610]
The Human Rights Watch is a famous international NGO, devoted to the
473

cause of advocacy of human rights. With its headquarters in New York, the
NGO operates globally with offices in Berlin, Beirut, Brussels, Chicago,
Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San
Francisco, Tokyo, Toronto, and Washington.[1611] Founded in 1978, it was
originally called the Helsinki Watch, established for the purpose of
monitoring the former Soviet Unions compliance with the Helsinki
Accords. Following this, the Americas Watch came up in 1981 to keep an
eye on the civil wars in Central America, after which the Asia Watch came
up in 1985, the Africa Watch in 1988 and the Middle East Watch in 1989,
all of which eventually becoming the Watch Committees, and finally coming
under one umbrella, the Human Rights Watch, comprises the history behind
its establishment. In practice, the Human Rights Watch denounces the
violations of all basic human rights as enunciated in the Universal
Declaration of Human Rights, and also advocates freedoms and champions
the guarantee of fundamental human rights. It also prepares research reports
on violations of international human rights norms world over, and uses these
reports to pressurize governments into action.
The Transparency International is also an NGO, devoted to the cause of
monitoring and publicizing corporate and political corruption in
international development. The annual Corruption Perceptions Index is a
publication released by the Transparency International, in order to facilitate
a comparative analysis and listing of corruption of states worldwide.
Although headquartered in Germany, it has about 70 National Chapters
world over that facilitate its international operations. It was founded in
May, 1993, as an initiative of Peter Eigen, an erstwhile regional director for
the World Bank. The organization is extremely important considering its
corruption prevention endeavours undertaken on a worldwide basis. The
organization also maintains the Corruption Perceptions index, which enlists
countries worldwide according to the extent of corruption prevalent in them.
The Democracy Watch is also an NGO of sorts, working through a website
to promote direct voting. It does not use representatives as intermediaries.
Aside of these, there are plenty of other non-governmental organizations
devoted to myriads of causes world over. The mark made by the
aforementioned in international law has been of immense importance, but,
this is not to discredit the work of several other organizations.
Multi-National Corporations
A multinational corporation refers to an incorporated establishment that
deals with the manufacture of goods or production of services in more than
one state world over, and generally deals with trade pertaining to them. The
474

ILO defines Multinational Corporations as including enterprises, whether of

public, mixed or private ownership, which own or control production,
distribution, services or other facilities outside the state in which they are
based.[1612] The first modern multinational corporation is generally
perceived to be the East India Company,[1613] which in effect, was a great
actor in shaping international law, for it was the first step the British Empire
took in colonization of several territories abroad. What began as trade
relations slowly burgeoned into the setting up of an Empire. These units then
attained independence and constitute the world today as states.
In the present day and age, multinational corporations have offices, branches
or manufacturing plants in different states, with headquarters located in one
country that is known as the home country. They have a massive impact upon
the local economies, and in the process upon the world economy,
international relations and world politics. MNCs have also played a
significant role in globalization, as states have been known to compete
against one another in a bid to welcome MNCs onto their terrain. The
onslaught of MNCs on a states soil is a boost to its tax revenues,
employment opportunities and generally improves its economic activity. In a
bid to compete with other states, most states coveting MNC attention tend to
offer tax breaks, pledges of government assistance and infrastructural
benefits. In effect, the advent of a Multi National Corporation implies the
augmentation of foreign investment, which is a massive earner for the
exchequer of any government.
In addition, multinational corporations also have a significant impact on
gubernatorial policy, essentially impacting the direction of policy making
with the threat of market withdrawal. A classic example is the forced
licensing of patented medication for low sums of money, consequent to
which pharmaceutical bigwigs quit the market, and in turn deprive the
economy of advanced medical drugs. Similarly, in other areas, such as
industry and fast moving consumer goods, a withdrawal wouldnt bode well
for it hits directly at the development quotient.
Another sphere of action Multinationals indulge in is corporate lobbying,
which is often targeted at different causes- from tariff structures to
environmental laws. In this regard, however, there is no substantially
uniform policy whatsoever. Each company pursues a different breed of
policies and corporate responsibilities, which augment its needs.
Nevertheless, as much as MNCs are deemed useful in the international
sphere, there are plenty of misgivings as to their existence, particularly due
to concerns as to the kind of materialism and false needs it inspires in the
475

consumer market. Additionally, many lay claim to the fact that there are
plenty of violations of human rights, particularly those of privacy and in
some places, the freedom of expression. Massive advertisement expenditure
leads to widespread and invasive advertising in the form of billboards,
television and print media advertisements, spam and guerrilla marketing.
There is also the added fear that children are targeted in several
advertisements, inculcating in them a sense of materialistic consumerism,
and also exposing them to inappropriate things that would otherwise be kept
well out of their reach until they attain a certain age. The operation of
MNCs also tends to spark off the corruption quotient, as so much money
exchanges hands between the branches of these entities themselves. There is
also the concern that several massive corporate campaign contributions in
democratic elections tend to taint political power.
This does not, however, take the wind out of the argument that Multi
National Corporations have encouraged a sense of unity in the economic
sector of international relations. Governments enjoy the idea of foreign
direct investment, and the sense of modernism that is induced with the
advent of world renowned titles, and in this manner, the advent of MNCs
has been a catalyst in fructifying the process of globalization.
International Diaspora Communities
Diaspora communities refer to organized links between members
constituting an international ethnic Diaspora, in their relations with their
ethnic roots, homelands and the host states accommodating them, and ethnic
conflicts and wars to which they have been made party.[1614] The term
Diaspora refers to a community of a transnational character that was once
defined as an ethnic group based on an identity that was shared between
them. Usually, the origin of Diasporas emanates from their migration, albeit
historical, from a homeland that originally housed them. Simple examples of
Diasporas would include the original Aryan Race which migrated to
different parts of the world. As of today, the Roma people, though some
claim are Diasporas, do not quite have much evidence to prove their
migration and their homeland, and the route taken to effect migration.
Ethnic Diasporas have been construed as inevitable parts of the
international system.[1615] The reasons are primarily that resident members
within a Diasporas host states can organize themselves to maximize their
political clout, secondly, that the Diaspora can exert ample pressure in its
homelands domestic political arena pertaining to issues it is concerned
with, and thirdly, the Diaspora in its transnational capacity, can actually
engage in relations with other states and international organizations,
476

transcending the limitations of their homelands and host states.

In their political activities, most Diasporas are engaged at three different
levels. At first, they exert ample influence on the politics of their homeland,
albeit being outsiders. At the second level, these Diasporas exercise
domestic political rights within the ambit of the host states, which in turn
allow them to follow a policy formulated by themselves in pursuing the
nations interests. At the international level, the Diaspora, enjoys presence
consequent to the structure of modern international relations which accords
it the right to constitute, elaborate and implement the national interest to the
government of the home state.

Chapter 19- Violent Non-State Actors

The term violent non-state actor is used to refer to any organization
or outfit that deploys violence and force that is not approved of by the state,
in a bid to attain its goals. The term remains in use till date having found its
roots in the United States military jargon.[1616] The use of force and the
spread of terror as a means to attain political ends has now come to remain
in the international realm. Although not new, the only difference between
violence and terror of today and that of the erstwhile eras, is the magnitude,
scale and intensity it has attained today. Several instances show that
terrorist outfits purposely choose targets that are in uninvolved third states,
so as to pressurize the government of the state against which it is in conflict,
or, against its real or potential or assumed allies.[1617]
A very simple look at the issues plaguing the global arena indicates that
477

violent non-state actors have indeed become rather pervasive, and remain to
be a rather stubborn challenge to states. There have been plenty of terrorist
attacks of well-planned and neatly executed cadre, by groups such as the AlQaeda and the Lashkar-e-Taiba in the United States, London and India,
among a host of other states. Mexico faces a strong opposition and is
engaged in fierce legal battle with drug-trafficking organizations which are
being rather brutal in their conduct. Youth gangs have a massive presence in
Central America and the United States, such as the Mara Salvatrucha.
Colombia faces the political challenge of the FARC insurgency, although the
guerillas have evolved into big time drug-trafficking organizations and
paramilitary organizations have donned the garb of drug traffickers.
Albania, Italy and scores of states that were once part of the Soviet Union
bear the brunt of criminal organizations that threaten business house and
corrupt politicians, all the while laundering their monetary proceeds.
Africa, Central Asia and Afghanistan bear the yoke of warlords divergently
opposed to one another. In Iraq, a host of insurgents, terrorists and criminal
organizations function in a manner that renders the restoration of peaceful
living a difficulty.
This is only just an example that shows us the tip of the iceberg. The advent
of Violent Non-State Actors in the international sphere is proving to be a
massive eroding factor of the conventional Westphalian State that is built on
the fundamental notions of sovereignty and power of the state. At one point,
the world was dominated by states, each of which was accorded
independence within their own domain, a notion popularly understood as
sovereignty. With the end of colonialism, newer states emerged. At the end
of the Second World War, the world understood the importance of each state
being independent of one another, and with that ideal in mind, founded the
United Nations, an organization built on the notion of sovereignty and
equality of states. Amongst other facets to the principle of sovereignty, the
right to use force and the legitimate monopoly over the use of force within
its domestic realm remained a sacred power in the hands of each state.
However, the emergence of Violent Non-State Actors has changed the way
things work, as now, it isnt only a state that enjoys a monopoly on the use of
force, but rather hoards of entities, such as youth gangs, drug cartels,
terrorists, militias, insurgents and criminal organizations are all deeming it
their prerogative and right to wield force, as though such power existed in
their hands inherently. It is important to remember that there are bifurcations
within these groups themselves. On the one hand there are those groups that
challenge the authority of a state, while on the other, they tend to cooperate
and collude with state structures. Sometimes the states are passive in their
478

approach, sometimes turning a blind eye, while some other times, the state
itself cooperates and fuels their move. Despite their different ideologies and
goals, and even sometimes, manner of operation, violent non-state actors
tend to share some characteristics. They tend to represent a common
challenge to the national and international realm, posing threats greater than
the sum of the other subjects.
The existence of Violent Non-State Actors is not new. They have been
around for considerable amount of time, starting out as early as the Roman
Empire, which, during the peak of its powers actually had to deal with
several roaming criminal bands that preyed on its citizens, and also with
maritime piracy. Although there were several such entities, their effect in the
20 Century was far more insignificant as opposed to other times,
particularly taking into consideration the fact that the consolidation of
colonial power in states and subsequent decolonization at the end of the
Second World War brought on more states within the ambit of international
law. However, the role of Violent Non-State Actors in the process of
decolonization must not be overseen, especially since several states
burgeoned out of independence movements undertaken by groups of
individuals who were not states, just yet. The role of the Violent Non-State
Actors in the process of shaping the history of many a country that was
originally under the thumb of colonial rule gave them a bigger platform in
international politics, as the 21 Century indicated their arrival in the
international scene with a greater presence. Most of these groups have been
touted to have arrived on the scene because of the inherent weakness in
many a state, and in turn, these groups have been known to perpetuate and
intensify the weakness of these states. The understanding of the term weak
states is a subjective understanding, which depends on plenty of factors. In
principle, a weak state is essentially one that lacks certain qualities that are
deemed critical constituents of what makes a state.
Aside of the fact that states are comprised of a territory, a population, a
government and sovereignty, there are certain facets that go into constituting
the contemporary state as it is found in present times. Primarily, the element
of Legitimacy, which asserts that the more legitimate the state, the more it
tends to rely on consent rather than on coercion and on authority, rather than
on power or brute force.[1618] The second element is the authority the state
possesses, in order to wield its sovereign power in the context of
determining the course of action it wishes to embark upon within its
domestic territorial domain. The third element constituting the contemporary
state is the trend of moving towards collective interest and advancement of
the populace as a whole, contrary to individual interest. This element has a
th

st

479

bifurcated effect, both, at the domestic level in that the state is driven
towards serving its entire populace, and, at the international level where the
state looks towards cooperating with its international counterparts towards
preserving and maintaining peace and security. The fourth element is the fact
that these states have designated degrees of authority that define its
governmental realm, and in effect, the state is responsible for the acts of
these designates, and for the acts of any entity that functions in accordance
with the directions or under the supervision and control of the state in
question. Consequently, therefore, the presence of Violent Non-State Actors
strikes at the very root of the contemporary states existence. They do not
have a legitimate right to use force, and lack the states sovereign power. In
addition, they have no collective goal although in certain cases they operate
with transnational liaisons. They also lack affiliation to a state, at most
times, which indicates how heavy the burden of pinning responsibility is.
In the light of the very nature of states in the international sphere, violent
Non-State Actors are inherently antagonistic to the conventional idea of
states, since the very essence of being a state is to be able to legitimately
govern itself and its decision to use force. Their existence has been driven
by political forces and by economic factors as well. Political forces such as
ineffective governance, weakness inherent in the state itself, pursuance of an
alternative ideology or political vendetta often spark off the existence of
these entities. The economic side has propelled the evolution and growth of
Violent Non-State Actors on a quicker note, through the process of
globalization, which has allowed the flow of arms and illicit dealings, and
has in turn, created an underground network of arms, weapons, money and
narcotics.
Kinds of Violent Non-State Actors
Criminal Organizations and Youth Gangs: Criminal organizations have, by
far, been accorded the status of being ubiquitous, although not necessarily in
a global network of sorts. Such groups are predominantly involved in
organized crime, such as drug trafficking, extortion and financial frauds. The
Chinese Triads, the Italian Mafia organizations, the Japanese Yakuza, the
Nigerian drug trafficking and financial fraudsters, the Russian and Albanian
criminal organizations, the Mexican drug-trafficking cartels and the Outlaw
Motor Cycle Gangs are the most famous and notorious criminal
organizations world over. Most of these entities take to crime as a facet of
their business endeavours, and do not look above the profit factor as their
gain. Although the element of risk subsists, most such organizations take to
crime considering the amount of money they derive from dabbling with it.
480

Insurgents/Insurgency: Insurgencies refer to armed rebellions directed at a

constituted authority, when those taking part in such rebellion are not
recognized as belligerent entities.[1619] The term has been defined by the
United States Department of Defense,[1620] as being organized, armed
political struggle whose goal may be the seizure of power through
revolutionary takeover and replacement of the existing government, and the
insurgency may also only intend to extract limited political concessions
unattainable through less violent means. Insurgents operate within a specific
territorial limit and generally try to deprive the prevalent government of
legitimacy, while firmly seeking to establish their own status as the
alternative entity. Insurgents are essentially on a quest for a transformation
in governance, involving their installation as the gubernatorial entity
following the overthrowing of the present government. Insurgents are known
to deploy terror tactics, but their activities are essentially driven by the urge
to establish alternative forms of government of the state. The aim is to be
able to control the state, and succeed in bringing the right of selfdetermination to fruition. The most commonly identified insurgency
movements include the Liberation Tigers of Tamil Eelam or the LTTE, of Sri
Lanka, the followers of Maoist ideology in Nepal and India, the FARC in
Colombia, the Shariah Law proponents in the form of the Taliban, and the
Sunni insurgency in Iraq that sought to overthrow the American presence in
part, and to establish a respected place for Sunni Muslims in the new
political order, in part. Although espousing high ideals, these groups dont
stop short of deploying terror tactics as part of their campaign of coercing
the government into giving in to them. Many a time, there are instances
where they undertake criminal activities to fund their movements, and some
insurgency movements are also known to have connections with terrorist
outfits in a bid to further their agenda.
Militias: Militias refer to military forces comprising ordinary populace,
[1621] in a bid to cater to defense activities, enforcement of emergency
laws and sometimes, to provide paramilitary services. A militia as it stands
in the present day context is essentially a recognizable irregular armed force
operating within the territory of a weak or failing state.[1622] The members
of militias are drawn by the lure of plenty of access to money, resources,
power, and security, although it is not impossible that they may be subjected
to coercion to join, or shown the flag of duty to join. Although they may be a
random mix of people, it is not impossible for militias to represent certain
specific ethnic, religious, tribal or other communal groups, and may
therefore pursue objectives specific to such a group. It is also not necessary
that militias have leaders, although it is possible that they may operate under
481

the auspices of a factional leader. Militias may also function as part of the
service of the state.[1623] Militias tend to prevail where there are groups
that believe themselves to be deprived of adequate state protection. Rio de
Janeiro has a host of militia members, a popular incident being one where
the said militia had tortured a journalist.[1624] Iraq also has a history of
long standing militia, such as the Kurdish Peshmerga, the Badr, and the
Mahdi Army, all of which originated with an aim to provide protection for
themselves where the state offered none.
Terrorism and Terrorist Organizations: Terrorism is a phenomenon that has
been known to mankind for over two millennia, but over this long period of
time, there hasnt been any all-encompassing definition of a universally
acceptable cadre.[1625] "Terror" comes from a Latin word, terrere,
meaning "to frighten".[1626] The terror cimbricus was a panic and state of
emergency in Rome in response to the approach of warriors of the Cimbri
tribe in 105 BC. The Jacobins cited this precedent when imposing a Reign
of Terror during the French Revolution.[1627] After the Jacobins lost
power, the word "terrorist" became a term of abuse. Although the Reign of
Terror was imposed by a government, in modern times "terrorism" usually
refers to the killing of innocent people[1628] by a private group in such a
way as to create a media spectacle. This meaning can be traced back to
Sergey Nechayev, who described himself as a "terrorist".[1629] Nechayev
founded the Russian terrorist group "People's Retribution" in 1869. In
November 2004, a United Nations Secretary General report described
terrorism as any act "intended to cause death or serious bodily harm to
civilians or non-combatants with the purpose of intimidating a population or
compelling a government or an international organization to do or abstain
from doing any act".[1630] Terror is now, perceptibly a threat to all forms
of sustainable peace.
Warlords: The term warlord has no precise definition so to speak,
particularly due to the lack of any formal means by which these entities
function. Warlords are essentially leaders of tribes or small ethnic groups
with some military experience, holding control over certain portions of
territory by wielding their military prowess. In effect, a warlord enjoys
military and civil control over a region in a state, and enjoys support on
account of armed forces showing loyalty and does not enjoy any central
authority.[1631] Depending on the ethnic segregations, warlords may
choose to remain in peaceful relations with other contemporaries, or there
may be plenty of clashes. Using their status, warlords generally tend to
enjoy more power than he would, were he in an official rank or position. In
the present day, warlordism tends to show face in failed states, namely those
482

states in which there has been a breakdown in governmental and

administrative machinery, or, those states where the government simply
exists as an entity devoid of any actual control over the territorial expanse.
Classic examples of warlords in the world today include the setting in
Somalia, where with the collapse of the central government, several groups
of rival warlords have power in what seems to be the only form of authority.
Afghanistan,[1632] Iraq,[1633] Russia,[1634] Burma,[1635] Colombia,
[1636] Democratic Republic of Congo,[1637] Sudan[1638] and Pakistan,
[1639] all have warlords on their territory. Warlords generally enjoy
military powers and are often affiliated to an ethnic community. They are
international actors since in many ways since they participate in the global
economic setting by indulging in one or more forms of illicit and blackmarketing arms, narcotics and even money. Primarily in thirst for power and
control over resources, these warlords essentially crusade for the selfish
interest of power over a territorial region, and subsequent control over
people and resources in the said region. Violence is usually their means of
operation, especially when they seek to control economic relations and
trade routes, in order to guarantee themselves a stronghold. There is no
formal structure of the warlording communities, when it comes to
organizational hierarchy. There are trusted aides and confidantes, but that
apart, no formal structure is installed to run their territories. Warlords try
their level best to retain their power and autonomy, and any attempt to curb
these powers on the part of the centre is not taken lightly. As long as their
autonomy is preserved, they may even go to the extent of assisting statebuilding and may even deploy democratization processes to legitimize their
positions within the political system of the state, as was the case with
Afghanistan, where they created a warlord democracy.[1640]
International Law and Violent Non-State
Actors
International law has not perceptibly dealt with militias, insurgents,
criminal groups and organizations and warlords, although its contribution
towards the legal realm governing terrorism is quite tangible, albeit
insufficient in the light of events that have transpired even after the
installation of certain laws. What international law has done, instead, is to
deal with individual criminal responsibility for acts committed by
individuals, such as slavery, war crimes, genocide, crimes against humanity,
disappearances and torture. With this, international participation has
successfully been able to attach itself to scores of non-state actors, from
attempting to deal with Mexican Drug Cartels through the UNODC to the
attempt of the UN to curb the warlords behind the piracy rampant in
483

Somalia, from the intervention of the international community in the Libyan

state to assist the uprising of rebellious populace, to the American war on
Afghanistans Taliban insurgency in retaliation to the attacks on September
11, 2001.
Most instances in international relations that relate to the involvement of
international participants with non-state actors involve the states taking the
law into their own hands. This is often the case because states are left to
face a situation that isnt contemplated by the law, or that falls outside the
ambit of what the law already has established. Be it militia, insurgencies or
warlords, their effects and activities are primarily targeted towards the
domestic expanse, and if any effect is felt internationally, it isnt very
tangible. This automatically warrants that it falls squarely on the shoulders
of the government concerned to tackle. However, in instances when the state
is severely incapacitated to the extent that dealing with the problem is
impossibly out of its capacities owing to a breakdown in machinery, or
owing to its demotion to the status of a failed status, such as the case of
Somalia, it becomes a necessity for the international community to
intervene. The vicissitudes of world affairs does not allow enough room for
the framing of constant principles, and in the absence of a one-size-fits-all
legal backdrop, the situation is left to the world community to settle.
For terrorism, however, it is a well-recognized fact that the terror network
operates globally. As far as international law is concerned, there are plenty
of political difficulties and obstacles that have made it difficult to
implement a law relating to terrorism. Consequently, therefore, a dual
approach has been followed in dealing with manifestations of terrorism and
its condemnation.[1641] The United Nations has a system of thirteen
conventions pertaining to terrorism,[1642] relating to different aspects of
terrorism. Most of the conventions relate to a scheme of extradite or
prosecute, as the basis upon which jurisdiction shall be established to bring
terrorists to book. The General Assembly constituted an ad hoc committee
on terrorism in December, 1972, and also adopted the 1994 Declaration on
Measures to Eliminate International Terrorism, which denounced all acts,
methods and practices of terrorism as criminal and unjustifiable, wherever
and by whomever it may be committed. [1643] The Declaration was one of
the first instruments to pin down a definition for the term terrorism, as being
criminal acts intended or calculated to provoke a state of terror in the
general public, a group or person or persons or particular persons for
political purposes are in any circumstance unjustifiable, whatever the
considerations of a political, philosophical, ideological, racial, ethnic,
religious or any other nature that may be invoked to justify them.
484

International law prohibits states from officially organizing, instigating,

facilitating, financing and tolerating terror and its pursuit, and are under an
obligation to take practical measures to ensure that their territories are not
subject to use for terrorist training, sponsoring, or for the planning and
preparation of terrorist acts against other states. Following this, the 2006
United Nations Global Counter-Terrorism Strategy was adopted by the
General Assembly, so as to establish a plan of action involving the general
condemnation of terrorism, international cooperation, along with the
adoption of measures to prevent the spread of terror, measures to combat
terrorism, measures to build state-capacity to fight terrorism and measures
to ensure full respect for human rights and the rule of law. Further, an AdHoc Committee was installed in 1996 to deal with codification of the law
on terrorism. International Law denounces terrorism as a threat to
international peace and security through Resolution 731 (1992) in
pertinence to the Lockerbie bombing and the subsequent question on the
extradition of suspected bombers from Libya which was not complied with,
and, through Resolution 1070 (1996) which was adopted in pertinence to
Sudan. Resolution 1368 (2001) adopted after the terror attacks of 9/11 also
noted that the international community was devoted to combat terrorism, and
deemed all acts of terrorism as threats to international peace and security.
[1644] The Security Council also established the Counter-Terrorism
Committee, to monitor the implementation of the resolution. Recently, the
Security Council also mandated the maintenance of a dialogue with states in
order to implement Resolution 1624 (2005) on prohibiting the incitement to
commit terrorist activities and promotion of dialogue to create an
understanding among civilizations. Regional effort has also been heavily
angled towards dealing with terrorism.[1645] The law relating to terrorism
has largely been modeled in a manner that keeps closely to the rules of
international human rights law and international humanitarian law.[1646]
Consequently, the UNHRC appointed a Special Rapporteur on the
promotion and protection of human rights while countering terrorism,
through resolution 2005/80. In this background, plenty of international
attention and concern has been focused on detainees in Guantanamo Bay, as
their detention and the interrogation techniques deployed in dealing with
terror suspects have been in flagrant violation of human rights law, and the
principles of rule of law. Concerns have been rife towards attaining a
system that strikes a balance between both, the rule of law to penalize
terror, and the laws of human rights for those accused of terror, and
subsequently arrested and subjected to investigation and interrogation.

485

PART VI: INTER-RELATIONS AND THE LAWS

GOVERNING THEM

Chapter 20 Treaties
Treaties are one of the most common means of furthering international
cooperation and concerted participation in international relations. Known
by other names such as conventions, protocols, covenants, pacts, charters,
concordats and charters, treaties can be forged between states, and states
and international organizations. States have forged relations through treaties
in almost every possible area of international relations.[1647] Treaties are
486

largely governed by a set genre of rules, and are therefore above the
likelihood of showing proclivity towards being swayed by conflicts of
interests between states. Each state is privy to plenty of treaties, some
bilateral, some multilateral, and every state endeavours to assure
themselves smooth functioning of the relationships that emanate from such
treaties. This goads states to honour the commitments they have undertaken
through the treaties they have become signatories to. Nevertheless, this is
not to imply that only treaties create international obligations, because even
a unilateral promise made is binding on the state making such promise under
international law.[1648] Treaties are entered to in the event that there is an
absence of international law pertaining to the issue, or, to pursue newer
interests with newer ties being forged. Through the instrument of a treaty,
wars have been brought to an end, territories have been ceded and acquired,
organizations have been established, disputes have been settled, alliances
and good-relations have been forged, special interests pursued and laws
have been codified- both progressive and consolidative.
All aspects of treaties are best explained and outlined in the 1969 Vienna
Convention on the Law of Treaties,[1649] which is a treaty in its own right,
codifying customary practice in pertinence to treaties. Some of the specific
norms taken from customary practice include the interpretation rules,[1650]
material breach,[1651] and the rule of rebus sic stantibus or the
fundamental change in circumstances.[1652] Since it reflects customary law,
[1653] even states that are not signatories to the Vienna Convention are
bound to obey the rules that reflect customary international law. The
remaining principles that are a product of progressive codification bind
only the states that are signatories to the Convention.
Treaties are built on certain fundamental notions. Primarily, there is the rule
that treaties must be fulfilled, honoured and performed in good faith. This is
encapsulated in the maxim pacta sunt servanda, and is one of the oldest
known norms in international law.[1654] In this respect, a treaty is similar
to a contract, in that it is essential that the parties ensure that they keep to the
values of uberrima fidae, or utmost good faith. Secondly, treaties bind only
those that are privy to it, and not to any other outside the ambit of the treaty,
except where the treaty concerns a third party and this is known as pacta
tertius nec nosunct nec prosunct. Thirdly, only those entities possessive of
a jus tractatuum, i.e., the right to conclude treaties, are allowed to enter
into treaty relations. This implies that the right exists only for states and
certain international organizations, although in principle, other entities have
been included as subjects of international law.
487

The definition of the term treaty is given under Article 2 of the Vienna
Convention as being an international agreement concluded between states in
written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation. The primary prerequisite is that the agreement needs
to be entered into between states, and there is no room for oral agreements
between states. For a treaty to exist, it is essential that the agreement be
reduced to writing.
The convention does not cover within its ambit, the possibility of
international organizations and states entering into treaties with one another,
and also excludes those agreements that are governed by the municipal laws
of states. Although these agreements are outside the ambit of the letter of the
law, it does not imply that they are in any way invalid in the eyes of law, but
rather that they are legitimate but outside the scope of the law as it exists.
Aside of the definitive scope and ambit, there is no prerequisite necessary
for the creation of a treaty or for its arrival in existence.[1655] The only
necessary factor is that the parties must share a common intention to enter
into an agreement in furtherance of their objectives.[1656] The intention can
be identified by perusing the text of the treaty itself and all the related
information pertaining to the situations and circumstances. This would
include the registration of the treaty itself under Article 102 of the UN
Charter, although not registering the treaty does not invalidate the treaty
itself. It is the consent factor that separates treaties from declarations and
joint statements. A mandate agreement was declared to be possessive of
features attributable to a treaty.[1657] The concession agreement between a
private company and a state were held not to be an international agreement.
[1658] Jurisprudence also shows that optional declarations submitting
disputes to the compulsory jurisdiction of the ICJ under Article 36(2) are
treaty provisions,[1659] but declarations pursuant to unilateral action in
pertinence to legal or factual situations are not treaties.[1660] In the same
light, are memoranda of understanding, which though not strictly treaties due
to the absence of legally binding effects, are of considerable importance in
international relations.[1661] The reason why states deal with instruments
that do not have binding force while embarking upon the pursuit of political
relations, is that they are easier to deal with, considering the degree of
flexibility, confidentiality and expediency, and also the fact that they can
easily be amended, all free of any legal consequences.[1662] Minutes of a
meeting may also amount to being an international agreement considering the
factual aspects of the issue at hand, as was seen in Qatar v. Bahrain,[1663]
where it was held that since the minutes signed by both sides were
488

indicative of all the commitments that both states involved had consented to.
Although the Vienna Convention on the Law of Treaties confines itself to
orthodox approach of dealing with the auspices of treaties entered into
between states alone, the agreements between states and international
organizations has contributed greatly to the vast confluence of jurisprudence
around the world. In fact, one of the most important norms of jus cogens,
namely the prohibition on the use of force and the threat to use force, is
codified in the UN Charter, which is in effect a treaty between states and the
UN, which is an organization. The ICJ has also dabbled with the
interpretation of the UN Charter on several occasions. A convention was
drafted towards codifying the rules relating to treaties between states and
international organizations, called the Convention on the Law of Treaties
between States and International Organizations or Between International
Organizations.[1664] Though it was signed by several states in 1986, it has
not yet entered into force.
Concluding a Treaty and its Entry into Force
Treaties are said to be concluded when the states privy to it decide upon its
contents and arrive at a concurrence, and agree to its structure, eventually
creating the treaty in the form in which they wish for it to be. There is no set
mechanism or activity that is to be followed in order to bring a treaty into
existence, and a lot is left to be decided by the states involved, their
intentions and their conduct in fructifying the agreement. States may choose
to draft treaties through their governments, representatives or even heads of
states, whichever seems the best course of action at any given time. The
authority to make treaties is derived from the municipal legal setting of each
state. The United States vests the right in the President, along with the
advice and consent of the Senate and the concurrence of two-thirds of the
Senators,[1665] Argentina and Mexico follow the same pattern, the United
Kingdom leaves it within the crowns domain,[1666] Australia leaves it to
the executive,[1667] France vests the power in the President,[1668] in
Switzerland the executive authority- the Federal Council- signs treaties,
Canada entrusts the treaty making power with its government and India
follows the British Practice by leaving it to the government to sign treaties.
[1669]
Pursuant to state practice, certain basic rules have come to be acceptable
standards to which treaty making should confirm. Primarily, though it is only
a state or an international organization that can enter into a treaty,
individuals have a hand in the process since states are inanimate and cannot
function without the intervention of human action. In pursuance of this right,
489

when certain individuals are designated authorities for the state, it is

necessary that they produce full powers, in keeping with Article 7 of the
Vienna Convention on the Law of Treaties, before they are accepted as
being capable of representing their states in determining the treaty.[1670]
These full powers are evidenced by all the documentation from their state,
testifying to the accordance of the capacity to act on behalf of the state. It is
essential so as to enable the other states party to the treaty to ensure and
satisfy themselves that they are transacting with individuals competent to
transact on behalf of their states.[1671] In addition, credentials are supplied
by the foreign minister to authorize a delegate to an international conference
at which a multilateral treaty is to be discussed. By these credentials, the
delegate is authorized to represent the state issuing the same, and he is in
turn obliged to present the credentials to the government of the other states,
or to the international organization. The responsibilities of the delegate only
extend far enough to cover the negotiation and adoption of the text of the
treaty, and the signature of the final act. To sign the treaty itself, a delegate
would need specific instructions to such effect from the government. It is not
impossible to find credentials and full powers given to a delegate through a
single document.
As a norm, it is necessary for all individuals authorized by a state to enter
into a treaty for the state, to produce the aforementioned documentation,
with the exception of the heads of state, heads of diplomatic missions and
foreign ministers for states and representatives accredited to international
organizations, who derive authority from the positions they hold.
International law presumes that each head of state is able to act on behalf of
their state in the course of international relations.[1672] Consequent to these
rules, when a treaty is entered into by a person who has no authority to do
so, will have no legal effect, unless the state concerned confirms the act
later, with retrospective effect.[1673]
The Final Act- before the
Treaty
The Final Act is effectively a documented recapitulation or summary of all
the events transpiring as part of the proceedings of an international
conference. In principle, all the treaties adopted, documents supporting
them, resolutions taken and passed, interpretative support and related
documentation are to be included within the Final Act. Each negotiating
state is to sign the final act, though it is left to the state to decide if it should
sign it or refuse. Signing the Final Act is not a commitment made by the
State to sign or ratify the treaty. It is more of acknowledging the minutes of a
490

meeting. For the signature of a final act, credentials are sufficient.

Adopting the Text of a Treaty
Article 9 of the Vienna Convention clearly provides that the adoption of the
text of a treaty occurs by the consent of all the States participating in its
drawing, as explained in Clause 1. The exception, however, as provided
under clause 2, indicates that the adoption of treaties in international
conferences occurs by the vote of two-thirds of the States present and
voting, unless by using the same majority they decide to deploy a different
rule. Although this is a rule based on what is assumed to happen at most
modern conferences, there are known instances of conferences drawing up
their own rules pertaining to procedure. Article 9(2) is not reflective of
customary international law. By the adoption of the text of the treaty, no
obligations are created, since a treaty itself does not come into existence
until two or more states consent to be bound by it. The expression of consent
is undertaken after the text is adopted.
Consent to be bound by a Treaty
As per Article 11 of the Vienna Convention on the Law of Treaties, the
consent of a state to be bound by a treaty can be expressed by signature, or
the exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or, by any other means if the state parties agree thus.
The number of ways mentioned in the Convention is oftentimes deemed as
obfuscating. Usually, the signification of consent is by way of affixing a
signature and subsequently embarking upon ratification of the instrument.
Those that sign the treaty are accorded the authority to bind their states as
soon as they sign the treaty. However, sometimes, there may be treaties that
begin to evince a binding effect only upon being ratified or approved of by
the head of state. As for the process of ratification, it is said to occur only in
the event that ratification instruments are exchanged between the contracting
states, or are deposited with the depositary.[1674] The impracticality of
relying on this method came to light in the wake of multilateral treaties that
linked several states of the world, and as an alternative, these multilateral
treaties are known to allow the deposition of ratification instruments with
either the international organization or any state that is designated to
function as a depositary. This designated authority, be it a state or
organization, then informs and notifies the other states concerned as soon as
it receives such communication.
Ratification as a process and its significance has a long standing position in
history. Back in an era where communication was not as easy as it is at
present, authorities of the state designated to sign a treaty werent quite able
491

to apprise their home countries of every situation surrounding a treaty, and

then to seek wise counsel as to whether or not they should sign the
agreement. Consequently, there evolved a need to be able to check the
representatives actions, should it be found to exceed the permissible extent
of their powers and the instructions given. Therefore, the process of
ratification was created, allowing the state to decide whether or not it
wishes to accept the representatives actions, after ascertaining that the
representatives had kept to the limited confines of the instructions given to
them by the state itself. However, this ideal slowly changed in terms of the
purpose of its existence, in the 1800s. The duty to ratify was no longer a
rule in place, instead making ratification an instrument to make amends at
the last minute consequent to second thoughts. In the period of time between
the signature and ratification, the government had the opportunity to mediate,
weigh the pros and cons, sometimes with the added counsel of public
opinion and sometimes with the wise counsel of negotiations and mediations
internally. In the event that the treaty was found antagonistic to the domestic
laws of the state, they could refrain from asserting consent by refraining
from ratification. The process underwent another purpose deviation in the
nineteenth century. States had burgeoned by the dozen at the end of
decolonization, and each state had a document that became the fundamental
law of their land, in their capacity as the constitution. The number of treaties
also grew steadily, and because of the sheer numbers and other pressing
concerns, there was neither room nor occasion to deliberate and discuss
treaties that came into existence. This paved the way towards beginning to
make the treaties binding upon the state as soon as they signed the same. For
many states, there is often no precondition that the subject matter of the
treaty determines as to whether it has to be ratified or not. There isnt any
mandate that politically important treaties would need ratification, and no
mandate otherwise either. Consequently, states have been given to follow
the procedure that suits their needs and the occasion most, and swings
between dispensing with the ratification mechanism and following the
process of ratification to the letter.
When it comes to ratification, present day practice shows that several
treaties mention whether or not ratification is necessary. Consequently, it
becomes difficult to decipher the course of action to be followed in the
event that the treaty is silent. The ambivalence of action gives way to plenty
of interpretation, allowing some to perceive that ratification is necessary
either way, while others are led to believe that it can be dispensed with.
The mainstream rule is not without exceptions though, particularly in
practice. The Vienna Convention on the Law of Treaties leaves the question
492

with a vague answer, stating that the intention of the parties should be seen
as offering a plausible explanation that backs the process to be followed in
implementing the treaty. As for what the treaty itself intends and how it is to
be culled out, Articles 12(1) and 14(1) offer explanation. Article 12(1)
states that the consent of a State to be bound by a treaty is expressed by the
signature of its representative when the treaty provides that signature shall
have that effect, or, it is otherwise established that the negotiating States
were agreed that signature should have that effect- which is obvious where
the treaty indicates that it shall come into force immediately or on a fixed
date in the future, or, the intention of the State to give that effect to the
signature appears from the full powers of its representative or was
expressed during the negotiations. When the consent of a State to be bound
by a treaty is by ratification, Article 14(1) states that such consent is
expressed when the treaty provides for such consent to be expressed by
ratification, or, it is otherwise established that the negotiating states were
agreed that ratification should be required, or, the representative of the State
has signed the treaty subject to ratification, or, the intention of the state to
sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiations. In addition, there is
also an accepted rule that if a state performs a treaty after signing it, it
constitutes tacit ratification. Similarly, if a state lays claim to certain rights
under a treaty, it cannot assert that it is not bound by the treaty itself.
Another means of asserting consent to a treaty is by way of accession. Also
titled adhesion or adherence, the term means the joining to, or the adding to.
In context, it refers to the act of joining a treaty by a party that did not
participate in the negotiations as under Article 15 of the Vienna Convention
on the Law of treaties. When a treaty is opened to accommodate the
participation of new member states by way of an accession provision and a
state accedes, it is called direct participation, as the original agreement is
not altered or amended. When all members of the treaty agree to allow a
state to add itself to the list of members, it is called indirect accession,
since the document and the text of the treaty may need to be modified. In
terms of the effects, Accession has the same consequences as ratification
and signature do. However, the only difference lies in the fact that the states
seeking accession themselves do not participate in the negotiation and
preparation of the treaty. Nevertheless, with Article 81 of the Vienna
Convention which mentions that it shall remain open for signature for a
years worth of time for the states that did not attend the Vienna Conference,
and with Article 83 notes that the convention shall remain open for the sake
of accession by any State belonging to categories mentioned in Article 81, it
493

seems like the difference between accession and signature and ratification is
no longer watertight, but rather blurred in practice.
Aside of these methods, another mechanism relied upon in signifying
consent to a treaty is by way of exchange of notes, or exchange of
correspondence. This usually takes place in the case of a bilateral treaty,
where the states representatives sign a note and send it across to the other.
Generally, this is supposed to signify consent on behalf of the states
involved, though sometimes if the states so intend, there may be a
subsequent incident of ratification.
While these methods exist and are followed in international law, when it
comes to an international organization, treaties and texts adopted by them
are left open for accession, ratification, acceptance and approval by the
states, thereby driving home the fact that whatever be the method, the
consequences emanating from signifying consent are the same, and therefore
allow room for the terms to be used interchangeably.
Making Reservations to a Treaty
It is not necessary that a state finds every provision in a treaty as being
agreeable. Sometimes, it may accept certain provisions and object to certain
others, which allow the state room to make reservations to those
provisions when they become parties to the treaty.[1675] The term
reservation refers, as per Article 2(1)(d) of the Vienna Convention on the
Law of Treaties, as being a unilateral statement made by a state, while
signing, ratifying, accepting, approving or acceding to a treaty, by which it
purports to exclude or modify the legal effect of certain provisions of the
treaty in their application to that state. Therefore, by effect, reservation
allows the state to be a party to the treaty, but allows it to exclude itself
from the legal effects of the provisions to which it objects. A state is
prohibited from making reservations after it has accepted the treaty.
Articles 19 to 23 of the Vienna Convention on the Law of Treaties enlist all
the procedures pertaining to reservations. Article 19 explains that a state
may not formulate a reservation if the reservation itself is prohibited by the
treaty, or, if the treaty provides that only specified reservations excluding
the reservation sought may be made, or, if it fails the compatibility test, in
that the reservation is incompatible. When made, a reservation must be put
into writing, and then sent to the depository of the treaty if it is a multilateral
treaty or to the other States if there arent too many other parties. Once
made, a state is free to withdraw the reservation at any time, by a written
submission to other state parties.
As to the effect of a reservation, the outcome depends on whether it is
494

accepted or rejected by the other states. In a bilateral treaty, there are no

problems since a new proposal between the two states is created by a
reservation, thereby allowing the states to negotiate. If there is no agreement
about the terms of the treaty itself, then the treaty will not be concluded. For
multilateral treaties, it is not wholly impossible for some states to accept the
reservation and for some to reject the same. Originally, the rule was that a
reservation could not be made unless such reservation was accepted by all
the states that signed the treaty. With the ICJs opinion to the contrary in the
Genocide Case,[1676] the rule changed. The Court noted that the traditional
theory bore undisputed value, but was not applicable to every treaty made.
Certain treaties, of which the Genocide Convention was one, which sought
to protect individuals instead of conferring reciprocal rights on state parties,
were exempt from the rule. Consequently, it was held that a State that has
made a reservation which has been objected to by one or more of the parties
to the [Genocide] Convention but not by others, can be regarded as a party
to the Convention if the reservation is compatible with the object and
purpose of the Convention.
When states object to a reservation, on the ground that it failed the legality
test, three common consequences are seen to occur. Either, the state making
such reservation is not bound by the treaty anymore, or, the state making the
reservation is bound by the treaty including parts on which it made the
reservation, or, the state making the reservation is bound by the treaty but
not the part on which it made the reservation. General practice reveals
deference to the last of the three options.[1677]
States may also resort to interpretative declarations to make reservations.
By professing such a declaration, the states often establish an interpretation
of a particular provision that affords the provision acceptability for the state
doing so. In many cases, states choose to deploy this mechanism so as to be
able to make the principles consistent with their municipal laws. When such
declarations are made, other states may make conflicting declarations, or
may oppose a declaration made by another state, and where there is neither
conflict nor opposition, the declaration is deemed to be accepted tacitly by
other states. However, it is not necessary that responses be tendered to
every interpretative declaration.
Registration of Treaties
Registration of treaties is catered to under Article 102 of the UN Charter, of
which Clause (1) mentions that every treaty entered into by any member of
the UN after the UN Charter came into force, shall as soon as possible be
registered with the Secretariat and be published by it. Without doubt, the
495

registration of treaties under this provision is restricted only to the treaties

between member states, though it is possible sometimes, that treaties
between non-members are voluntarily submitted for filing. The purpose
behind introducing Article 102 of the UN Charter is to avert the creation of
secret agreements without the knowledge of their nationals, or other states,
all of whose interests may suffer a setback by such agreements.[1678]
Treaties registered under Article 102 are published under the UNTS, or the
United Nations Treaty Series, and make for a ready reference. Nonregistering of treaties do not render them void.
Treaties and their Entry into Force
A treaty is said to enter into force the moment all the negotiating states
express their consent to be bound by it, and to adhere to it.[1679] However,
it is left to the member states to decide whether or not they shall stick to this
norm, or depart from it in practice, by relying upon a provision inserted in
the treaty. It is possible for the member states to delay the entry into force of
a treaty, if there is a provision to such effect. Sometimes, time is deployed
as a mechanism to allow states to adapt themselves in keeping with what the
treaty mandates, by perhaps modifying their municipal laws or by
establishing offices to implement the treaties. In doing so, a treaty may
mention a specific date or may mention a specific number of days or months
or years after the final incident of ratification. When several states take part
in the process of drafting a treaty, it not necessary that all the states will
ratify it, and therefore, the rule that a treaty cannot enter into force until all
negotiating states ratify it cannot be applied. Therefore, states qualify the
rule by mentioning that a treaty shall enter into force the moment a certain
number of ratifications are received. In practice, the number of states
expected to ratify prior to its entry into force is often about a third of the
number of states that negotiated the treaty, as there would be no point if only
a very small number of states were to ratify the treaty. When ratified, the
treaty enters into force in respect of only those states that ratify it, and does
not bind all the other states until they themselves ratify the treaty.
Once in force, a treaty operates with prospective effect mostly, except in the
event where retrospective operation is intended to occur as per the treaty
itself. Contracting states may also choose to deploy the provisional
application of a treaty in the period of time between its signature and entry
into force. Unless otherwise agreed by the states negotiating a treaty, the
provisional application with respect to a State will be terminated, if and
when such state notifies the other state parties to the same treaty that it does
not wish to become a party to the treaty.[1680]
496

Once a treaty is signed, or exchange of instruments occur, or a treaty is

accepted or approved, ratified by a state, it is a rule that a state is obliged to
refrain from acts that would defeat the object and purpose of a treaty until
such time that it makes its intention of not becoming a party to the treaty
clear.[1681] Similarly, a state is obliged to refrain from acts that defeat the
object and purpose of a treaty when it has expressed its consent to be bound
by the treaty, pending the entry into force of the treaty and provided that such
entry into force is not unduly delayed.
Amending provisions in a Treaty
A treaty can be amended in three ways, by states party to it. The first mode
is a Formal Amendment process, which mandates that states party to the
treaty have to ratify the treaty all over again, after negotiating the provisions
and altering certain parts of the treaty accordingly. The second mode of
amendment is the Informal Amendment process, where, the executive
council of the treaty makes certain procedural, technical or correctional
changes, based on the change in customary law sometimes, or based on state
behaviour which puts the law in a new light. The third method of treaty
amendment is the process of making minor corrections, which is done by a
procs-verbal, which is in the event that there are obvious errors in the
textual matter of the treaty, or where the text of the treaty does not reflect
properly, the intention of the parties adopting the same.
The general rule relating to the amendment of treaties is mentioned in
Article 39, noting that a treaty may be amended by agreement between the
parties. Article 40 deals with multilateral treaties, indicating that unless
otherwise provided by the treaty itself, the amendment process shall be
governed by the rules contained in the same article. Proposals to amend a
multilateral treaty ought to be notified to all the contracting States, each of
whom shall have the right to take part in the decision as to the action to be
taken in relation to the proposal, and in the negotiation and conclusion of
any agreement for the amendment of the treaty. Further, each state entitled to
become a party to the treaty shall also be entitled to become a party to the
treaty, as amended, and the amending agreement does not bind any State
already a party to the treaty which does not become a party to the amending
agreement. A state becoming a party to the treaty after the amending
agreement enters into force, in the absence of a contrary intention by that
State, shall be considered as party to the treaty as amended and shall be
considered as a party to the un-amended treaty in relation to any party to the
treaty that is not bound by the amending agreement. Article 41 explains the
amendment of multilateral treaties as between certain of the parties only.
497

Two or more of the parties to a multilateral treaty may conclude an

agreement to modify the treaty as between themselves alone, if either the
possibility of such a modification is provided for by the treaty, or, the
modification in question is not prohibited by the treaty and does not affect
the rights of other parties to the treaty and does not derogate from provisions
that is in keeping with the object and purpose of the treaty.
Executing and Implementing treaties
Treaties are generally of two kinds when it comes to execution- they may be
self-executing, in that they are applicable the moment a state is a party since
all the obligations come into action, or, they may be non-self-executing, in
that they may require the help of an implementation legislation, in the form
of a change in the domestic law of a state party that will direct or enable it
to fulfill treaty obligations.
As for the interpretation of a treaty, a lot relies upon the circumstances. Just
as it occurs in the context of a contract, a treaty must be interpreted to assist
in bringing out the true meaning of the textual matter, in the event that it is
found to be ambiguous or in need of clarification. Articles 31 to 33 of the
Vienna Convention deal with interpretation of treaties. The Vienna
Convention explains that treaties need to be interpreted in good faith, and in
keeping with the ordinary meaning given to the terms of the treaty, in their
context and in the light of its object and purpose. Article 31 states the
general rule of interpretation, noting that a treaty shall be interpreted in good
faith in keeping with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose, and to
identify this context for the sake of interpretation, reference is to be made to
its preamble, annexes, agreements and instruments related to the conclusion
of the treaty. Clause 4 of the same provision asserts that a term shall be
given a special meaning only if the parties intend thus. Article 32 allows the
use of supplementary means of interpretation, such as the preparatory work
of the treaty and the circumstances of its conclusion so as to clarify the
meaning where interpretation otherwise leaves an ambiguous meaning, or a
manifestly absurd or unreasonable. Article 33 speaks of the interpretation of
treaties authenticated in two or more languages.
Regard must also be had to the intention of the parties when the treaty was
created, so as to avoid traversing the scope and ambit of the treaty itself.
Furthermore, there is also the concern that no interpretation should be
imposed by one party upon another, and consent must underlie the
acceptance of interpretation. If all the member states consent to a particular
interpretation, it effectively has the legal effect of adding a clause to the
498

treaty, and the process is titled authentic interpretation of the treaty. In

addition, the power to interpret treaties is also accorded to judicial forums,
which may have to clarify the purport of a provision or an entire treaty
itself, while adjudicating a dispute concerning the same.
The Scope and Ambit of Treaties
Territoriality
Treaties generally apply with reference to the territorial expanse of states.
Unless a different intention appears from the treaty, or, unless a different
intention is established, a treaty is generally considered binding in respect
of the entire territory of each state party to it, as per Article 29 of the Vienna
Convention on the Law of Treaties. Nevertheless, the general rule is also
subject to plenty of exceptions in practice, particularly through specific
provisions in each treaty.
The Status of Third States with respect to
Treaties
The principle pacta tertis nec nosunct nec prosunct states that a treaty
neither creates rights nor obligations for third states.[1682] The rule is not
without exceptions, as are enumerated under Articles 35 to 37 of the Vienna
Convention on the Law of Treaties. Outside of these, Article 2(6) of the UN
Charter is a classic example of a provision imposing obligations on states
without their consent, whereby the UN seeks to ensure that states that are not
its members shall act in accordance with the principles mentioned under
Article 2 of the UN Charter, as far as necessary to maintain international
peace and security.
Article 34 mentions the General rule relating to treaties and their relations
with third states, noting that a treaty does not create either obligations or
rights for a third State without its consent. Article 35 notes the first
exception as being a case of treaties that specifically provide for
obligations for third States. An obligation arises for a third State from a
provision of a treaty if the parties to the treaty intend the provision to be the
means of establishing the obligation and the third State expressly accepts
that obligation in writing. Article 36 speaks of treaties that provide rights
for third States. Clause 1 notes that a right arises for a third State from a
provision of a treaty if the parties to the treaty intend the provision to accord
that right either to the third State, or, to a group of States to which it belongs,
or to all States and the third State assents thereto, and such assent shall be
presumed so long as the contrary is not indicated, unless the treaty
otherwise provides. Article 37 speaks of the revocation or modification of
obligations or rights of third States. Revocation may be done only with the
499

consent of the parties to the treaty, and the third State itself, unless otherwise
agreed and established. Aside of all of these instances, Article 38 explains
that a rule in a treaty may just become binding upon a third State as a
customary rule in International Law, and may be recognized as such.
Subsequent Treaties on the Same
Subject
State practice reveals instances where a party to a treaty subsequently enters
into another treaty on the same subject matter, and there may be mutual
inconsistency between both provisions. Article 30 of the Vienna Convention
addresses the issues that may ensue from the signing of subsequent treaties
on the same subject and inconsistency between provisions of the treaties
concerned. As a rule, when a treaty specifies that it is subject to, or that it is
not to be considered as incompatible with an earlier or subsequent treaty,
the provisions of that other treaty shall prevail. Clause 3 of the same
provision suggests that when all the parties to the earlier treaty are parties
to the later treaty, but, such earlier treaty is not terminated or suspended in
operation under Article 59, the earlier treaty applies only to the extent of
compatibility with the later treaty. Clause 4 explains the situation when the
parties to the later treaty do not include all the parties to the earlier treaty,
the rule in clause 3 covers the state parties to both treaties, and between a
state party to both and a state party to either, the treaty to which both states
are parties will govern their relations.
Invalidation of a Treaty
The impeachment of the validity of a treaty or of the consent of a State to be
bound by a treaty may be impeached only through the application of the
Vienna Convention on the Law of Treaties.[1683] The purpose behind the
provision is essentially to prevent states from seeking to evade inconvenient
treaty obligations by alleging invalidity of the treaty. If a state is given room
to unilaterally choose to invalidate a treaty, it amounts to a flagrant violation
in international law, particularly in view of the applicable rule of pacta
sunt servanda and the fact that a treaty cannot be refused to be performed in
the guise of a states own allegations of its invalidity.
Conflicts between Treaty Law and Municipal
Law
Most representatives of states derive authority from their constitutions to
sign, conclude and sometimes even ratify a treaty, most often with the
consent of the legislative authorities of the state. In the event that a state
representative transcends these rules and enters into a treaty, the question
arises as to the validity of the treaty and as to the position of the state in
500

relation to the treaty. Divergent opinion indicates on the one hand that the
treaty becomes void since the treaty was entered into without capacity and
authorization on part of the state representative, and on the other hand,
indicates that the treaty remains valid, although there are exceptions in the
event that action was embarked upon with the knowledge that the
representative of a state acted in breach of his constitutions mandate. In
general practice, the latter view has received more support, as has been
seen under Article 46 of the Vienna Convention on the Law of Treaties.
Article 46 is a safeguard of sorts in that a treaty is not allowed room to be
invalidated on the basis of a states municipal laws coming in conflict with
the treaty it has signed. Clause 1 indicates that A State may not invoke the
fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties
as invalidating its consent unless that violation was manifest and concerned
a rule of its internal law of fundamental importance. Clause 2 states that a
violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and in
keeping with good faith.
Article 46, above everything else, is concerned with the states inner
working, particularly the inter-relationship between the executive and the
legislature within a state. With the application of this article, the executives
act in making a treaty is binding on the state. However, there is no dearth to
the absurdities that may emanate therefrom, specifically since each state has
an established hierarchy and need not necessarily be bound by the actions of
an individual placed on the junior rungs of hierarchical power. A safeguard
is built in Article 7 of the Vienna Convention, which dictates the
prerequisites necessarily to be followed when determining if a person
represents a state or not. As per Article 7(1), for the purposes of expressing
consent of the State to be bound by a treaty, a person is considered as
representing a state if he produces his appropriate full powers, or, it
appears from the practice of the state involved, or from other related
circumstances, that the state intended to consider such person as their
representative in respect of signing treaties, and to accordingly dispense
with full powers. Clause 2 of the same Article states that heads of states,
heads of government and ministers of foreign affairs are, on account of their
functions and without having to produce full powers, deemed as
representing their state for the purpose of performing all acts relating to the
conclusion of the treaty. In addition, Article 8 also functions as a safeguard.
It states that an act relating to the conclusion of a treaty performed by a
person who cannot be considered under Article 7 as being an authorized
501

person, is without legal effect unless the state confirms it afterwards.

There are also possible occasions where a state may accord competence in
a person to sign a treaty on its behalf with a few specific restrictions on his
authority. In the event that this restriction is disregarded, Article 47
indicates that the omission of the representative to observe that restriction
may not be invoked as invalidating the consent expressed by him unless such
restriction was notified to the other negotiating States prior to his expressing
such consent.
Coercion while signing a
Treaty
Generally, the expression of a States consent to be bound by a treaty will
not have any legal effect if it has been procured by way of the coercion of
its representatives through acts or threats directed against him, as per
Article 51 of the Vienna Convention. Consequently, any instance of coercion
involving threats to the individual himself while signing the treaty will not
bind him or his state. The ideal underlying the signing of treaties is the norm
of pacta sunt servanda, and if good faith is the basis of making a treaty,
there should be no room to entertain any form of coercion. Consent when
expressed, needs to be free and fair.
In some cases, consent may be forced with coercion directed to the state, in
the form of a threat to use force, or an actual use of force. Article 52 of the
Vienna Convention notes that a treaty is void if its conclusion has been
procured by the threat or use of force in violation of the principles of
international law embodied in the UN Charter. In effect, the provision
reflects modern international law.[1684] The use of force is outlawed under
international law, and is considered an integral part of jus cogens. Any
intention to use force or threaten to use force to make a state consent to a
treaty only augments the assertion of power by one state, and therefore
warrants that such treaties made are unequal in terms of the standing of the
parties.[1685] If consent to a treaty is procured by force, and subsequently
law develops whereby force is no longer outlawed, the subsequent change
in law does not work retrospectively so as to suggest that the consent to the
treaty is not void.
Mistake/Error
Consent to a treaty may also be invalidated when a state invokes an error in
a treaty as a basis, if such error relates to a fact or situation which was
assumed by that State to exist at the time when the treaty was concluded and
formed an essential basis of its consent to be bound by the treaty. However,
this rule does not apply if the State involved contributed to its own conduct
502

to the error, or, if the circumstances were such that the State was notified of
the likelihood of the error. Errors in treaties do not vitiate the consent to
such treaty if they relate only to the wording of the treaty. Article 79 allows
for the correction of errors in texts, or in certified copies of treaties, unless
the states otherwise decide to correct the error by having the appropriate
correction made in the text and causing the same to be initialed by
representatives, or by executing or exchanging an instrument or instruments
setting out the correction which it has been agreed to make, or, by executing
a corrected text of the whole treaty by the same procedure as in the case of
the original text.
Fraud
Article 49 of the Vienna Convention allows for the vitiation of consent to a
treaty if such consent has been obtained by fraudulent conduct of another
negotiating State.
Corruption of a State
Representative
Article 50 allows the vitiation of the consent of a State if such expression of
consent was procured through the corruption of its representative directly or
indirectly by another negotiating State.
Conflicts with Norms of Jus Cogens
A treaty that is in conflict with the norms of jus cogens is not valid in
international law. The very nature of a jus cogens norm is that it is
inherently of such degree of importance that no derogation from it
whatsoever is permissible in the eyes of law.
What happens when a treaty is Invalid?
The invalidation of a treaty depends on various factors, and as a natural
corollary, the consequences emanating therefrom are also dependant on the
nature of factors behind its invalidation. When a treaty is invalidated under
Article 8, where the subsequent confirmation of an act performed without
authorization is lacking, or under Article 51 where consent is consequent to
coercion of a state representative, or Article 52 where consent is
consequent to coercion of a State by the threat or use of force directed at a
State, or Article 53 where a treaty is seen to be in conflict with a norm of
jus cogens, the treaty itself is declared void. In other words, the consent to
be bound by the treaty is without legal effect.
However, when a treaty is sought to be invalidated on the grounds of
conflict in internal laws relating to the competence to conclude treaties as
503

per Article 46, or when specific restrictions on authority have been

transcended as per Article 47, or where an error exists as under Article 48,
or a fraud occurs as under Article 49, or where there is corruption by the
representative of a State as per Article 50, the Vienna Convention explains
under Article 45, that a state may merely invoke the vitiating factor as a
basis to invalidate the treaty. In effect therefore, it is a case of declaring the
treaty voidable instead of void.
The procedural requirements to be followed by a State when a treaty is
invalidated are explained in Article 65. The state seeking to impeach the
validity of a treaty should notify the other parties of its claim. If after the
expiry of a period of 3 months (unless otherwise fixed differently in view of
some special urgency) from the date on which the notification is received,
no state has objected, the state making such notification is free to carry out
the measure it proposes according to article 67. Objections raised need to
be solved by following Article 33 of the UN Charter. Article 66 speaks of
judicial settlements, arbitration and conciliation consequent to disputes
arising as to the conflict of a treaty with a norm of jus cogens, and allows
states to approach the ICJ over disputes therein. For other disputes, the
article confers jurisdiction upon special conciliation commissions set up
under an annex to the Convention. The purpose of Article 66 is to
essentially prevent an abuse of rules relating to the causes of invalidity.
Article 67 mandates that instruments seeking to declare a treaty invalid
ought to be in writing, and need to be communicated to the other states.
Article 68 allows for the revocation of a notification or instrument at any
time before it actually takes effect.
Termination of Treaties
Although generally made for the pursuit of relations and for the fortification
of inter-state collaboration, not all treaties last forever, primarily for the
fact that the stultification of the law would be the automatic consequence.
Certain treaties may come to extinction based on provisions within the
treaty itself, such as a provision stipulating that the treaty would come to an
end after a certain period of time, or because of external factors. The law
pertaining to treaties provides a median path between two extremes of
rigidity and full-fledged flexibility, in the matter of termination.[1686] A
state, at every turn, necessarily requires a certain measure of stability, along
with a measurable amount of flexibility in its international relations. Article
42 of the Vienna Convention on the Law of Treaties states that the
termination of a treaty, its denunciation or the withdrawal of a party, may
occur only as a consequence of the application of the provisions of the
504

treaty itself, or of the Vienna Convention, and these provisions are also
applicable to the suspension of the operation of the treaty.
By Treaty Provisions themselves: Article 54 of the Convention deals with
the former, namely the termination of the treaty in accordance with the
provisions of the treaty itself. It states that the termination of a treaty or the
withdrawal of a party may occur in conformity with the provision of the
treaty itself. Most international treaties provide for such form of termination
or withdrawal at the behest of the parties, in accordance with the treatys
rules. This may be done through different kinds of provisions. The most
common is the expiry of time, whereby a treaty comes to an end after the
expiry of a certain span of time. Another modality is the termination of the
treaty when a specific event occurs. Still other treaties do not allow the
termination to depend upon the passage of time or upon the occurrence of an
event, but rather allow the states to exercise discretion to withdraw from the
treaty, after giving a certain period of notice.
Termination by Mutual Consent: Sometimes, all the states together may
arrive at a conclusion to terminate the treaty, based on consent mutually
arrived at. Article 54 also provides that the termination of a treaty or the
withdrawal of a party may take place at any time by the consent of all the
parties. Initially it used to be thought that the treaty could be subjected to
termination in a manner akin to the method followed when it was made,
which implied that another ratified treaty had to be made to terminate a
treaty. However, the heavy burden of formality led to the creation of
desuetude, which refers to the notion of allowing the parties to imply an
agreement to terminate the treaty in their conduct, suggesting that they no
longer regarded the treaty as being in force.[1687] Article 56 speaks of the
implicit right of withdrawal from or denunciation of the treaty. Clause 1
states that a treaty that comprises no provision pertaining to its termination,
and does not provide for any mechanism of denunciation or withdrawal, is
not subject to denunciation or withdrawal unless it is established that the
parties intended to admit the possibility of denunciation or withdrawal, or a
right of denunciation or withdrawal may be implicit by the nature of the
treaty. Clause 2 suggests that a party shall not give less than twelve months
notice of its intention to denounce or withdraw from a treaty under clause 1.
This provision has been deemed a reflection of customary international law,
in Nicaragua v. USA.[1688] Usually, the right of denunciation or
withdrawal is deemed to be found in most treaties of alliance and treaties
for commercial purposes. Sometimes, treaties that confer jurisdiction on
international courts and tribunals also found to have similar provisions.
505

[1689]
Termination by Breach: Another means by which a treaty may be terminated
is by way of a breach. The Vienna Convention covers this modality under
Article 60(1), whereby a material breach of a bilateral treaty by either party
entitles the other to invoke the breach itself as a ground to terminate or
suspend the operation in whole or in part of the treaty. The state that suffers
as a consequence of the breach is one of the accepted sanctions under
international law for the breach of a treaty, and such state is also allowed to
make a claim for compensation.
For a multilateral treaty, though, the process is a little different. A material
breach of a multilateral treaty by any of the parties, as per Article 60(2),
entitles under clause (a), the other parties by unanimous agreement to
suspend the operation of the treaty in whole or in part to terminate it either
in the relations between themselves and the defaulting State, or, as between
all the parties; under clause (b) a party specially affected by the breach to
invoke it as a ground for suspending the operation of the treaty in whole or
in part in the relations between itself and the defaulting State; and under
clause (c) any party other than the defaulting state to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part with
respect to itself if the treaty is of such a character that a material breach of
its provisions by one party radically changes the position of every party
with respect to the further performance of its obligations under the treaty.
A right to terminate a treaty on the ground of breach, however, does not
arise unless the breach itself is material, i.e., one that is serious or
fundamental. Article 60(3) explains the meaning of a material breach as
being one that involves a repudiation of the treaty not sanctioned by the
present Convention, or, the violation of a provision essential to the
accomplishment of the object or purpose of the treaty. The provision is not
without discrepancies, particularly in that there is no mention whatsoever
that all violations of essential provisions do not constitute material
breaches, but rather only those that are serious breaches.
In essence, the right to terminate a treaty on the occurrence of a material
breach is more like making the treaty voidable at the option of the injured
state, based on the material breach. Therefore, the treaty is not automatically
rendered terminated in the event that there is a material breach. A State
loses the right, however, as Article 45 puts it, if after becoming aware of the
facts, the state shall have explicitly agreed that the treaty shall remain in
force or operation, or, if the state by reason of its conduct be deemed to
have acquiesced in the maintenance in force or in operation of the treaty. It
506

is also waived if the treaty itself includes a provision excluding such a right,
as the Vienna Convention explains under Articles 60(4) and 60(5).
Termination by Impossibility of Performance: A state may invoke the
impossibility of performing a treaty as a ground for the termination of the
treaty, in keeping with Article 61 of the Vienna Convention. Clause 1
mentions that a state may invoke impossibility of performing a treaty as a
ground for terminating or withdrawing from it if the impossibility results
from the permanent disappearance or destruction of an object indispensable
for the execution of the treaty. If the impossibility is temporary, it may be
invoked only as a ground for suspending the operation of the treaty. Clause 2
prevents states from benefitting out of their own conduct in breach of the
same treaty or other treaties. It notes that the impossibility of performance
may not be invoked by a party as a ground for terminating, withdrawing
from or suspending the operation of a treaty if the impossibility is the result
of a breach by that party either of an obligation under the treaty or of any
other international obligation owed to any other party to the treaty.
Once again, the option only implies that the treaty is voidable at the option
of the states involved, and therefore, the impossibility of performance does
not automatically bring the treaty to an end. A classic example for treaties
such as this would be the agreement between states to access resources. If
the resources themselves are depleted, there wouldnt be any point in
pursuing the treaty and retaining it in its form.
Rebus Sic Stantibus: The maxim means a fundamental change in
circumstances. The doctrine applies so as to allow states to step out of the
scope of obligation, in that a State is not under any obligation to continue or
to perform a treaty if there is a fundamental change in circumstances since
the time the treaty was concluded. In its original form, the doctrine allowed
states to escape treaty obligations whenever there was a change in
circumstances, but present practice reveals that the term is interpreted to
imply only exceptional circumstances, so as to prevent states from escaping
their obligations by citing frivolous reasons to dispense with any provision
inconvenient for it. The rule is explained under Article 62, and is given a
very narrow import. Clause 1 explains that a fundamental change of
circumstances which has occurred with regard to those existing at the time
of the conclusion of a treaty, and which was not foreseen by the parties, may
not be invoked as a ground for terminating or withdrawing from the treaty
unless the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty, and the effect of the
change is radically to transform the extent of obligations still to be
507

performed under the treaty. Clause 2 explains that a fundamental change of

circumstances may not be invoked as a ground for terminating or
withdrawing from the treaty if the treaty established a boundary, or if the
fundamental change is the result of a breach by the party invoking it either of
an obligation under the treaty or of any other international obligation owed
to any other party to the treaty. Clause 3 explains that if a party invokes
rebus sic stantibus as a basis for terminating or withdrawing from a treaty,
it may also do so as a ground for suspending the operation of the treaty.
To a large extent, Article 62 codifies customary law.[1690] General opinion
is divergent as to the consequences emanating from a fundamental change in
circumstances. The Vienna Convention allows the state an option to
terminate the treaty when there is a fundamental change in circumstances. In
principle, the doctrine is invoked only in extreme circumstances, and in all
other cases wherever applicable, a consensual agreement is reached
towards amending the treaty so as not to bring it to a grinding halt. In
addition, the UN General Assembly is also allowed to intervene under
Article 14 of the UN Charter, by offering some suggestions for the
modification of the treaty, in that it has the power to recommend measures
for the peaceful adjustment of any situation, regardless of origin, which it
deems likely to impair the general welfare or friendly relations among
nations.
Conflict with Jus Cogens: A norm of jus cogens is absolutely nonderogable, and therefore, as Article 64 explains, if a peremptory norm of
international law emerges anew, an existing treaty conflicting with the norm
becomes void and terminates. Although the treaty is said to terminate, the
termination holds only prospective effect, as per Article 71(2).
War and Hostilities: Article 73 of the Vienna Convention mentions that its
provisions shall not prejudge any question that may arise in relation to a
treaty from the outbreak of hostilities between states. Aside of this, dealing
with the effects of war on treaties in the provisions is conspicuous by its
absence in the Convention, leading to complexities in dealing with the issue
itself.[1691] In the early eras, War was deemed to bring all treaties to an
end between the warring factions, but the rule has only a very limited
application in present day context. War, per se, would bring a treaty to an
end when the treaty is of a bilateral nature, but the application of the rule
takes a deviant path in the context of multilateral treaties where both, neutral
states and belligerent states are members. After World War I, generally
treaties were seen to be suspended during war and reinstated after the war,
and some treaties also had clauses pertaining to pre-war treaties, which
508

revised some treaties and declared some treaties as retained and not
abrogated.[1692] After the Second World War, general practice has shown
that states tend to maintain their treaties even during armed conflicts, except
where there is a fundamental change in circumstances or a case of material
breach or impossibility of performance. Treaties that govern the laws of
war, that establish international organizations and that pertain to human
rights (even though some rights can be suspended during war) are not
affected by the outbreak of war.
Consequences of the Termination and Suspension of a
Treaty
Article 70 explains the consequences of the termination of a treaty. Clause 1
notes that unless the treaty otherwise provides or the parties otherwise
agree, the termination of a treaty under its provisions or in accordance with
the Vienna Convention releases the parties from any obligation to further
perform the treaty, and does not affect any right, obligation or legal situation
of the parties created through the execution of the treaty prior to its
termination. Clause 2 explains that if a State denounces or withdraws from a
multilateral treaty, clause 1 applies in the relations between that State and
each of the other parties to the treaty from the date when such denunciation
or withdrawal takes effect.
Article 72 explains the consequences of the suspension of the operation of a
treaty. Unless the treaty itself otherwise provides, or unless the states
themselves agree, the suspension of a treaty releases the states between
which the operation of the treaty is suspended from the obligation to
perform the treaty in their mutual relations during the period of suspension,
and does not otherwise affect the legal relations between the states
established by the treaty.

509

Chapter 21 The Use of Force

The fundamental basis upon which International Law is built is the need to
maintain the anarchical balance between states, thereby preserving the
equality of states and the status of sovereignty accorded to each state.
Preserving this world order is not possible without the presence of a sense
of security, and a sense of peaceful existence.[1693] In the municipal realm,
the right to use force is left to the domain of the governmental authority, and
remains within the states monopoly, thereby leaving no room whatsoever to
any other entity to wield the right to use force. This is evidently easier
considering the hegemony established by the hierarchical structure dictating
the flow of authority and responsibility. However, since international law
pivots on a fulcrum of equality and seeks to maintain with sanctimonious
value, the sovereign power of each state constituting the international
community, the question of who enjoys the right to use force and who
doesnt evinces a completely different response. Keeping in mind the fact
that the maintenance of international order and peace and security is of
utmost importance, there is no doubt whatsoever that there is a restriction on
the use of force, particularly as states endeavour to minimize the extent and
regulate the resort to the deployment of force in international relations. A lot
of considerations drive the policy of deploying force in international
relations, however, the evolution of law and sanction in international law
has largely sought to weed out the role of force in the interaction of states.
The two World Wars showed the futility behind the use of force in
international relations. Although politics sparked off the fundamental debate
that led to the deployment of force in the two wars, a great deal of suffering
was a death blow of sorts to the population world over. The League of
Nations tried in vain to avert an event like the First World War, but the
outbreak of the Second World War in a greater degree and proportion than
its predecessor scared the world, leading to the evolution of the United
Nations. Although the United Nations established under Article 2 of its
Charter, that the use of force would not be tolerated nor permitted under
international law, the end of the Second World War witnessed the world
community being placed precariously on tenterhooks, as the Cold War
510

progressed. Aggression of any sort was watched fearfully. Today, the norm
prohibiting the use of force has attained a significant status, and has been
construed a jus cogens norm, in that there shall be no derogation from it
whatsoever. And yet, state practice and instances from history denote the
marking of the rule with plenty of footnotes noting exceptions and violations
aplenty.
Force itself has been a rather prominent and consistent aspect in
international politics and in the global system, since as early as civilization
itself. Individuals resorted to force and violence when they were threatened,
or when they wished to assert authority over another. With the burgeoning of
tribal clans and groups in society, force became a means of action in the
relations between two different groups when conflict arose in search of
power and in assertion of authority, or when there was a need to covet
something from the other clan. Slowly, kingdoms emerged, and civilizations
were built. Force took on the shade of war, as political communities
emergent on the scene allowed force as a frequent means of interaction
amongst different communities. The emergence of the modern state in the
seventeenth century led to the evolution force in the form of armed conflicts.
[1694] Force has generally been a mechanism to impose authority, or to
demand that the entity at the receiving end follow a specific course of
action. With the burgeoning of technology and newer means to indulge in the
use of force, technology and science assured more horrific means of
personifying force. The untold horrors of the two World Wars were
amplified by the weapons used, and till date, the amassing of weapons of
whatever kind- nuclear or non-nuclear, capable of proliferating mass
destruction, have always been a bone of contention in the international
community.
Thus far, the international community has been credited with having stayed
away from a war as huge as the two World Wars. However, this is not to
mean that there have been no instances involving the use of force. There
have been plenty of incidents in international law involving the use of force,
and with the expansion of the scope and ambit of the field, there have also
been plenty of instances of the use of force by non-state entities as well. The
fact that the international community is fundamentally an anarchical set up
and there is no single supreme authority to rule over states, only augments
the fact that the states do not have an overall entity to turn to for the
enforcement of their rights and for the settlement of their disputes. This
tends to inspire states to take the law into their own hands in a bid to settle
scores. The United Nations, though considered an authority on many
accounts, doesnt have a monopoly on the use of force, nor for that matter,
511

equipment to wield a right to exercise monopoly on force. Coupled with all

of this is the inherent supremacy in each state couched in the entities as a
consequence of their sovereign status, which necessitates the maintenance of
international juridical equality of all states. International law, on many
accounts, is a product of the consent of states to a particular brand of
principles, outlawing a certain scheme of activity. The very fact that the
consent of states determines the law tends to allow states to deviate
whenever they feel it prudent, in that they do not consent to a certain course
of action, and thereby express their displeasure.
The law relating to the use of force and the threat to use force is generally
unanimous, both in customary law and treaty law, in that it is outlawed.
However, state practice has shown that the law has been accommodative of
exceptions that have come to be known as having carved a niche for
themselves. In most instances, the use of force is often directed against the
sovereignty and territorial integrity of other states, although force is not
technically always military in nature. Coercive economic policies and other
means of action not necessarily involving the use of force in the military
sense are also seen to have been put to use in international relations.
The law relating to the Use of Force- A
Historical Outline
For as long as civilization has existed, there has always been a use or a
threat to use force in some form or the other, consequent to which there have
been countering efforts to restrain and clamp down restrictions on the use of
force. Ancient scriptures, religious texts and records of past events aplenty,
along with practice of states back in history are all testimony to the fact that
efforts have always been made to ensure that force and a choice to resort to
force is curbed and restricted. Historically, an understanding of the
evolution of the law relating to the use of force is best culled out by a
segregation of phases of development, better known as the just war period,
the positivist era, the First World War and the League of Nations phase, the
Kellogg-Briand Pact phase, the Second World War and the UN phase, the
Cold War era and the present scheme of things.
The Just War Era
The Just War era existed from circa 330 BC until circa 1650 AD. It is
essentially the earliest amongst the efforts in the international community
directed towards quelling the use of force, outlawing it all the same.
Starting with sacred writings and Holy Scriptures of some of the worlds
most ancient religions, the Just War period essentially reflected an approach
otherwise known as the holy war perception, which indicated that a
512

recourse to force could be accepted as permissible only when it was backed

with divine ordainment. The doctrine itself was a result of the
Christianization of the Roman Empire, as pacificism was slowly discarded.
The principle also had roots in the Greek and Roman philosophy.
Embarking on war would essentially be permissible should there be a need
to punish wrongs and restore peace, but not for any other reason. Aggression
was not outlawed if it was backed by a need to maintain an ordered society,
in which context it was actually the ultimate sanction. The Holy War concept
was slowly replaced by the Just War doctrine, which stated that a just cause
was necessary for a state to take up force or aggression as a part of its
action. Divine sanction was not mandatory any longer, although it was still
an acceptable cause.
The creation of nation-states in Europe led to a change in the Just War
Doctrine.[1695] Sovereignty became an important facet, and states were led
to believe that they each had a reasonable cause backing their conduct on the
international front. States slowly began understanding the importance of
trying their best to resolve their disputes before resorting to the use of force.
The need to maintain a balance of power and to maintain a degree of
equality amongst the states each possessive of its own brand of sovereign
rights propelled the modification of the Just War doctrine. The use of force
directed against other states began posing threats to the states and their
pursuit of sovereign powers, and also tended to undermine the value and
importance of such sovereign power. With this development, the emphasis
shifted and began to back the need to maintain security and order with
peaceful tactics. With time, views began changing to understand and accept
the notion that not every kind of wrong would prove to be a basis for
embarking on war,[1696] and that states ought to call the attention of their
opposing counterparts to the existence of a sufficient cause and then request
the wrongdoing state to cease and desist from its wrong, while also
requesting reparation before resorting to force.[1697] Rules began evolving
to the effect that innocent people were to be preserved as immune from
attack, and any use of force was to have been necessarily compliant with the
elements of necessity and proportionality.[1698] This modified Just War
approach was a precursor to the positivist era.
The Positivist Era
Positivism dealt the death knell for the Just War doctrine. With the
installation of the balance of power system, following the signature and
entry into force of the Peace Treaty of Westphalia in 1648, states were
recognized as being equal and sovereign. No state was given the right to
513

judge the cause backing another states act, even if it involved the use of
force, for the subjective analysis and stance of each state could defeat the
fundamental norms of objectivity. However, states were under an obligation
to respect its treaties and agreements, and also the sovereignty and integrity
of other states. The resort to force was generally prohibited, and states were
encouraged to follow a peaceful method in resolving disputes. In the event
that war did take place, plenty of legal consequences emanated therefrom.
Neutrality laws and laws of war came up, binding third states and warring
states, and the warring states inter se. Ethical standards were not deployed
to dent the legality of force as an instrument in international relations, and at
all times, the laws of war and the laws of neutrality were mandatory to be
adhered to. The cause- whether just or otherwise, remained irrelevant to the
international community and the focus instead was on whether there was a
state of war or otherwise.[1699] War was the full-fledged deployment of
force in international relations, involving the use of force in keeping with a
set of rules and regulations. Aside of these activities, plenty of instances
involving the use of force short of war, were seen, some of the examples for
which were reprisals and pacific blockades.[1700] States resorted to the
use of force short of war so as to be able to assert their power over another
state, or to require another state to conform to its policies, or to refrain from
any violations of the law. Specific instances of these measures were seen to
have been directed against states in Asia and Latin America in the 19
Century.[1701] Even these measures were not without their own
restrictions, particularly since it was necessary to prevent it from becoming
something bigger and more difficult to nip.
The First World War and the League of
Nations
The First World War was the first time that the use of force took such a
grand scale and magnitude in world politics. Consequently, the question of
the place for unjust war in international relations arose, and paved the way
for the rebuilding of international affairs based on state cooperation. In a
bid to ensure that there would be no use of force thereafter, international
cooperation took the form of the League of Nations. The League of Nations,
through its covenant declared that members had an obligation to submit
disputes to arbitration or judicial settlement, or inquiry by the Leagues
Council. Members were not to resort to war until three months lapsed from
the date of the arbitral award or the judicial decision or inquiry report of the
Council. The idea was to provide some time for the states to cool off, and
reflect on their policies instead of allowing force immediately. The
members of the League of Nations also entered into an agreement amongst
th

514

themselves not to enter into war with other members who complied with the
arbitral award or the judicial decision or the Councils reports.[1702]
Although these principles were laid down, there was no actual prohibition
of war or the use of force, although there was an installation of machinery to
restrict the use of force to levels permissible and acceptable under the eyes
of law. There was however, no success to the endeavours of the League of
Nations, especially since the Second World War came into play in a few
years of its establishment.
During the period, though, the Covenant of the League was not the only
authority on the recourse to the use of force and the deployment of war as a
policy tactic. The 1923 Draft Treaty on Mutual Assistance and the 1924
Protocol for the Pacific Settlement of International Disputes attempted at
clarifying and refining the scheme of principles governing the use of force in
international relations. Aggression was outlawed as an international crime.
The Kellogg-Briand Pact Phase
In 1928, the General Treaty for the Renunciation of War, or the KelloggBriand Pact was signed.[1703] The state signatories agreed collectively to
condemn any recourse to war, and also went on to agree to renounce it as an
instrument of national policy in international relations.[1704] The treaty
was welcomed with ample acceptance, and actually paved the way for a
long-term prohibition of war in international law. The states also agreed that
the settlement or solution of all the disputes or conflicts, in whatever form
or origin they may be, which may arise amongst them, shall never be sought
except by peaceful means.[1705] The Kellogg-Briand pact was an
improvement over the League of Nations Covenant, in that war and the use
of force were completely outlawed, without exception- contrary to the
League in that the Covenant of the League provided for the use of force in
certain circumstances. Despite there being no exception noted by the Pact,
the state signatories came to accept the fact that the use of force in selfdefense would not be outlawed.[1706]
The Pact was not free from its own problems, though. The Pact only
explicitly prohibited and outlawed war, and did not speak of forces short of
war. In addition, there was no definitive scope for the exception of selfdefense, thereby allowing states to take the law into their own hands should
the occasion arise.
The Second World War and the UN Charter
Phase
The Second World War was a bigger amplification of international use of
force, and showed the world a side of international relations that no state
515

would ever want to see repeating. The use of force took on gigantic
proportions that involved a massive cornucopia of human rights violations
and armed reprisals and the deployment of terribly destructive weapons.
Following terrible atrocities on human life and in international relations,
there was a need to preserve cooperation and peace in order to tether the
world towards a more stable structure. This led to the creation of the United
Nations, which in turn established a strong framework for the worlds
progress towards a more peaceful and stable order. Since, the UN Charter
has functioned as the basis on which issues governing International
Relations are dealt with.
Article 2(4) of the UN Charter is the most important norm outlawing the use
and any threat of the use of force in international relations. It mandates that
all members shall refrain in their international relations from the threat or
use of force against the territorial integrity or the political independence of
any state, or in any other manner inconsistent with the purposes of the United
Nations. The provision is deemed as an integral part of customary
international law and has been given the status of being a jus cogens norm.
The use of the term force is significant of the fact that it isnt just war that is
outlawed, but rather that all forms of force, whether war itself or short of
war. Additional declarations have contributed towards the principles
status. In the 1970 Declaration on Principles of International Law, the
principle relating to the outlawing of the use or threat to use force was
explained in a comprehensive fashion. The first important point is that all
wars of aggression amount to a crime against peace for which responsibility
exists under the ambit of international law. Secondly, states are not to use or
threaten to use force in order to violate international boundaries,
demarcations and armistice lines and in order to resolve international
disputes. The next rule is that states are under an obligation to refrain from
using force in any act of reprisal they may embark upon. Four, states should
not use force as a means to deprive people of enjoying their right to selfdetermination and pursuit of independence. Lastly, states are also under an
obligation to refrain from organizing, instigating, aiding or participating in
acts of civil strife or terrorist acts in another state, and consequently, must
also not allow the formation of any armed groups for the invasion of another
state and its territory. Though the Declaration does not have any binding
value, it is considered very important in international law, since it virtually
lends life to the provisions of the UN Charter.
Article 2(4) is not without exceptions, particularly two in number- namely,
the collective measures taken by the UN and the rights of individual affected
states to embark upon a campaign of self-defense. Though the UN Charter
516

technically binds states that are its members, article 2(6) ensures that even
states that are not its members are to act in keeping with these principles so
as to maintain international peace and security. This has led the UN to
embark upon directing its resolutions to all states, and not only to its
members.[1707]
In a technical dissection of Article 2(4), there are primarily two aspects to
be considered, namely, the meaning and ambit of the term force, and the
significance of the phraseology in coining the latter part of the Article,
namely, against the territorial integrity or the political independence of any
state, or in any other manner inconsistent with the purposes of the United
Nations. The understanding of these aspects is extremely relevant
considering the fact that the prohibition on the use of force also has a place
under customary international law.
Force and Threat to use Force
Firstly, dealing with the use of the term Force, the prohibitory norm can
be understood as extending to all forms of force, even those essentially short
of war. However, there are plenty of questions, particularly as to whether
this term is exclusively deployed to include only armed force, or whether it
includes other forms, such as economic and political or diplomatic force.
With burgeoning attempts at hostilities between states on policy grounds,
economic warfare and by way of what is now known as cyber warfare,
there are plenty of instances where different forms of force are being
deployed to influence the political independence and sometimes, territorial
integrity of other states.[1708] Can the term force under Article 2(4) be
understood to include the deployment of economic sanctions and embargoes,
boycotts, cyber warfare, diplomatic and political coercion within its ambit?
The UN Charter was the product of several states attempts at bringing
peace in a world that was still reeling in the aftermath of the Second World
War, and in conjunction with the understanding one may cull out by reading
the provision with the preamble and with the relevant traveaux
preparatoires, it seems clear that armed force is outlawed, especially since
the only exception to the rule also mentions armed force in its content. In
general, however, it has come to be understood that the drafters intended to
prohibit all kinds of force, with the exception of all those that are carried
out under the aegis of the United Nations, or in keeping with the Security
Councils directions.[1709]
The 1970 Declaration on the Principles of International Law has mandated
that states have the duty to refrain from military, political, economic or any
other form of coercion aimed against the political independence or the
517

territorial integrity of any State. Additionally, states are under an obligation,

as per the 1974 Charter of Economic Rights and Duties of States, to refrain
from using or encouraging the use of economic, political or any other kinds
of measures to coerce another state, so as to obtain from such other state, the
subordination of the exercise of its sovereign rights. In addition, most
documents pertaining to International Human Rights all accord the right to
individuals to pursue their own economic, social and cultural development.
Article 41 is particularly relevant in understanding the extent and ambit of
the term non-military force. It states that the Security Council may decide
what measures not involving the use of armed force are to be employed to
give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures, and that these may include complete or
partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of
diplomatic relations. Article 41 enumerates a non-exhaustive list of nonmilitary measures that can be deployed by the Security Council. Particularly
relevant is the complete or partial interruption of economic relations, a tool
that was deployed in 1990 when Iraq invaded Kuwait, in the form of an
arms embargo on the export of weapons and other military equipment to
Iraq.[1710]
As there has been a considerable change in the political order in the
international arena, and that there have been plenty of changes in the
dynamics governing international relations, the scope and ambit of the
meaning of force has also been expanded to include forms aside of armed
force. Consequently, naval blockades are outlawed as force.[1711]
Technically speaking, however, the use of sanctions would not quite amount
to a use of force per se, unless there is a deployment of force itself as a
tactic to carry the procedure out.[1712]
As for economic pressures and economic sanctions, there were plenty of
instances where the issue was subject to debate. In 1945, when states were
in the process of bringing the idea of an international organization to
maintain peace, to fruition, the Brazilian proposal to include economic force
within the meaning of force as used under Article 2(4), was turned down in
the San Francisco conference. The question was particularly examined in
the Arab Oil Weapon case, in 1973-1974, against all states that were
favourable towards Israel in their policies.[1713] The purpose of this move
was to ensure that the Iraqi Government would immediately withdraw its
military forces from Kuwait.[1714]
If one were to read the provision in keeping with the rule of contextual
518

connotation as expressed under Article 31(1) of the Vienna Convention on

the Law of Treaties, the consequent interpretation would be conducted with
the context being constructed as the backdrop of international relations,
whereby non-intervention in the matters of another sovereign state is the
norm. This is in contrast with the norm underlying Human Rights Treaties,
especially since they guarantee the freedoms that are inherent in an
individual, in the confines of self-determination. The parochial line of
interpretation of the term force also finds support in the UN Charters
Preamble, and in the traveaux preparatoires, in accordance with the
interpretative rules as mentioned under Article 31(1) and Article 32 of the
Vienna Convention. In addition, by following harmonious construction and
reading relevant provisions, such as Article 51 in conjunction, one can
easily infer that the qualification of armed force in Article 51 whittles
down the scope and ambit of force under Article 2(4). State policy also
augments this line of thought, particularly seeing as how if the restriction on
the use of force were to extend to all forms of force and not just armed
force, it could lead to a situation where States are left bereft of any means of
exerting pressure on other States in retaliation to their acts of violation of
international law. This would create an anomaly of sorts, since there is no
international organization that enforces the law and ensures compliance with
the law.[1715] However, the solution to this lies not in determinedly
outlawing only military force, but in outlawing all forms of force, and in
allowing all forms of force to be exercised in the sole-exception situation
involving self-defense. This would ensure that states are not made victims
of economic or diplomatic force, while in the event that there happens to be
an unfair violation of international law, there would be room to entertain
any form of retaliatory use of force of necessary and proportional character.
The threat to use force is also prohibited, and is placed on the same
pedestal as the use of force is, where outlawing and prohibition are
concerned.[1716] In the Legality of the Threat or Use of Nuclear
Weapons,[1717] the ICJ noted that a signaled intention to use force, if
certain events occur, amounts to a threat to use force under the ambit of
Article 2(4), but, the mere possession of nuclear weapons do not constitute
a threat to use force per se, but keeping in mind the principles of nuclear
deterrence, and the fact that a state possessing those weapons would be able
to resort to using those weapons, the court explained that whether a threat
existed or not would depend on whether the use of force in the manner so
envisaged would affect the territorial integrity or the political independence
of a state, or would go against the purposes of the UN Charter. If the
threatened course of action is found intending to be a means of defense and
519

thereby spark a consequential breach of principles of necessity and

proportionality, it would also be a threat in contrast to Article 2(4).[1718]
Against the territorial integrity or political
independence of any state
The scope of action mentioned to prohibit the use of force is that it is not to
be deployed against the territorial integrity or political independence of any
state, and that it is not to be in contravention of the purposes of the United
Nations. This part of the clause has also sparked off plenty of debates,
particularly in respect of the nature of interpretation that must be followed.
A restrictive interpretation may end up functioning as a sieve allowing room
for those uses of force that do not quite strictly fall within either category of
offensive action. A very liberal interpretation may bring to book some acts
of displeasure a state is otherwise permitted to embark upon by the very
nature of its sovereign power, inherent in its form and structure. General
consensus is, however, is in support of a middle-path, in that the provision
would be interpreted to permit force that does not contravene the clause,
and such that it enforces the primary prohibition.[1719]
The 1965 Declaration on the Inadmissibility of Intervention is a relevant
document in this regard,[1720] considering that it highlights the fact that no
state has the right to intervene, directly or indirectly, for any reason
whatsoever, in the internal or external affairs of any other state.
Consequently, armed intervention and all other forms of interference or
attempted threats against the personality of the state or against its political,
economic and cultural elements, are condemned. The same line of thought
was the proposed course of action in the 1970 Declaration on the Principles
in International Law, coupled with the augmentation that these forms of force
would be a violation of international law.[1721]
The most fundamental aspect of international law and international relations
lies in the fact that the independence of states needs to be respected, and that
there should be absolutely no justification in a bid to intervene in another
states affairs, or in a bid to violate their territorial integrity.[1722] These
principles and the need to maintain international peace and security form the
core of the principles of the UN Charter.
Permissible and Impermissible forms
of Force
The right to Self-Defence
Self-defence is an exception to the prohibition on the use of force under
international law. Generally deemed as existent in customary international
520

law and under treaty law, the right to self-defence is circumscribed within
the permissible ambit of the law and is necessarily required to comply with
the mandated requirements mentioned under the law.
Under the ambit of customary international law, the right was said to have
evolved from the Caroline Case,[1723] where in 1837 a few British
subjects had destroyed a vessel in an American port, following its seizure,
since the Caroline had being ferrying groups of American citizens who went
into Canada and conducted raids. Following the incident, the American
Secretary of State mentioned the essentials to be followed in carrying out an
act of self-defence, so as to afford it legitimacy and justification. The
criteria were enumerated in the form of a precondition, in that there had to
be a necessity of self-defence, instant, overwhelming, leaving no choice of
means, and no moment for deliberation. In addition, the proportionality
quotient was mandated, noting that the use of force was not to be
unreasonable or excessive, since the act, justified by the necessity of selfdefence, needs to be limited by the necessity and kept clearly within it. The
principles were accepted by the erstwhile British Government, and have
come to be known as part of customary international law.[1724]
A statutory right also exists alongside, in the form of Article 51 of the UN
Charter. The provision has come under the scanner quite a number of times,
with one set of scholars believing that the ambit of Article 51 was
exhaustive,[1725] and with another set perceiving Article 51 as specifying
only self-defence in retaliation to the use of armed force, while customary
law permitted a self-defence right over and above this provision. In
practice, however, following the Nicaragua Case,[1726] the right to selfdefence has been understood as being inherent in every state, both, under
customary international law and under the UN Charter. In effect, article 51
only just puts into words and confirms the otherwise already existent norm
under customary international law, and cannot be deemed as subsuming and
supervening customary international law. Although there is no exact
overlap, and there are different criteria governing both forms of selfdefence, the right under customary international law runs alongside the right
afforded under Article 51.
The right under Article 51 is enshrined upon the fulfilment of certain
preconditions. Firstly, there should be an armed attack; Second, the right
exists until the Security Council takes action; third, it should be reported to
the Council; Fourth, it should be subject to review by the Council; Fifth, this
right does not affect the Councils right to maintain peace and security and
lastly, the right is not available against non-members of the UN.
521

Before embarking upon the exercise of self-defence under Article 51, a state
is primarily obligated to show that it has suffered the brunt of an armed
attack, and has to discharge the burden of proof upon it to prove the same.
[1727] In the Nicaragua Case,[1728] the Court explained that an armed
attack includes action by regular armed forces across an international
border, and also the sending by, or on behalf of a state, of armed bands or
groups which carry out acts of armed force of such level and gravity, as to
amount to an actual armed attack conducted by the regular armed forces, or
its substantial involvement therein. This provision was shown to have been
included under Article 3(g) of the Definition of Aggression, as mentioned
under UNGA Resolution 3314(XXIX) of 1974, and was held to have been
reflective of customary international law.[1729] To determine whether an
act amounts to an armed attack or not, lies largely in the ability to
distinguish between the graver forms of the use of force and those of a
lesser grave form in comparison.[1730] There is no hard and fast
categorization of what amounts to an armed attack and what doesnt. The
absence of a definitive mandate, there is often a blurring of lines between
which acts amount to an armed attack and which dont. There is also no
clarity on the question as to whether the precursor to self-defence must
necessarily be an armed attack directed at a state, or whether a state could
act in pursuit of defending itself against an attack upon its embassies on
foreign soil, or against an attack on its diplomats and diplomatic staff on
foreign terrain. The lack of a legal amplification on this question has led to
state practice filling the void. In August 1998, when the American
Embassies in Kenya and Tanzania were bombed, causing the loss of as many
as 250 lives and also resulted in the damage to property, the United States
launched cruise missile attacks on some entities affiliated with the
organization of Osama Bin Laden, who were deemed responsible for the
attacks. A similar course of action was followed in pursuit of the same
entities after the attack on the World Trade Centre in the United States, on
September 11, 2001. In following these policies, the United States had
declared that it was acting in pursuit of self-defence under the ambit of
Article 51 of the UN Charter.[1731]
Though the armed attack is to be directed towards the state, the provision is
wide enough in amplitude to allow the inclusion of attacks against ships and
aircrafts belonging to the state itself. This was seen in practice in the Corfu
Channel Case,[1732] where the British warships that were attacked while
exercising innocent passage in the territorial waters of another state, were
held entitled to exercise self-defence and return fire. However, in
pertinence to attacks on the national of a state, resident abroad, a state has
522

generally been deemed as not having a right to use force to defend its
nationals without the consent of the government of such other state where the
event occurred. There is also a minority perception opining the opposite,
believing that the right to use force in self-defence exists just as much in the
context of protecting nationals abroad, as it exists in other circumstances
accepted under international law. In the interest of the international
community, it would be preferable to subscribe to the former view, seeing
as it would be dangerous to peace and security particularly in the wake of
the fact that armed force would be deployed by powerful states in a bid to
protect its nationals, and slowly gain ground in another state, thereby turning
their act into an intervention. However, this is not to denounce the imminent
need to embark upon self-help should the occasion demand that a state take
action to rescue its nationals. The international community has also seemed
more accepting of a means of action being embarked upon to rescue a states
own nationals from foreign territory.
In exercise of self-defence, a state is under an obligation to ensure that it
adheres to the norms of necessity and proportionality.[1733] Customary
International Law has a specific rule, noting that self-defence would
essentially warrant only those acts that bear proportionality to the armed
attack, and those that are necessary to embark in response to the armed
attack.[1734] The evaluation of what qualifies as necessary and
proportional is largely dependent on the facts and circumstances shrouding
each case. A state would necessarily have to demonstrate that it was
absolutely necessary for the state to retaliate since the attack needs the
response that is proposed to be embarked upon. Inherent in this issue is the
fact that a state has to adduce the necessary evidence to support and buttress
its assertions of necessity. In the Oil Platforms Case,[1735] the ICJ was
quick to point out that the United States attacks on the Oil platforms in
question were not necessary to respond to the attack on the Sea Isle City and
the mining of the USS Samuel Roberts. Further, the United States had not
adduced any evidence to assert that it had informed Iran that it was
displeased by the military activities of the platforms. The fact that the US
opined one of the attacks on an oil platform was a target of opportunity,
automatically took away the element of self-defence from legitimizing its
acts. The proportionality quotient is the second requirement. What needs to
be seen is that the act taken in self-defence needs to be in proportion to the
armed attack carried out. The scale of the operation and the magnitude of
force embarked upon are integral to determining the magnitude of force to
be used in retaliation to an armed attack.[1736] The taking of airports and
towns by the Ugandan forces was held neither necessary nor proportionate
523

to the series of trans-border attacks it claimed to have faced, in retaliation

to which it embarked on self-defence.[1737] The proportionality of the
force used in self-defence also hinges on the nature of the weapons put to
use in the retaliatory measure, and evaluating the same against the nature of
weapons that were employed in the original use of force itself. However,
the question is more obfuscating in the case of a response that needs to be
formulated in retaliation to a series of activities which may have to be taken
into account, and not just the armed attack immediately preceding the act of
self-defence. The general perception is that where there are a series of
activities, forming a chain of events, the test of proportionality would have
to be interpreted accordingly, and the state contemplating the action would
have to take a call on making the determination.[1738]
Another angle that has created quite a stir in international law is the
question of who the right of self-defence can be exercised against. The crux
of the question is as to whether a right of self-defence exists in retaliation to
attacks carried out by non-state actors.[1739] If it is clear that the state itself
has had a hand in despatching the armed bands to carry out an armed attack,
there is no doubt that there can be a retaliatory move to augment selfdefence in pursuit of the victim states interests. However, where there is
either no evidence of state support for the armed groups, or if no state is
backing the armed group thereby making it a non-state actor in entirety,
problems arise. An issue of this sort was tackled in the Nicaragua Case,
[1740] where the ICJ refused to accept that the right of self-defence
extended to situations where a third state provided assistance to rebels by
way of providing weapons and other form of support, even though in
technical terms, such assistance is capable of constituting a threat to use
force or actual use of force, or even amount to intervention in the affairs of
another state. Consequently, by this definition, a state would not be able to
take action against a third state that is supporting an armed attack against it.
In The Construction of a Wall Case,[1741] the ICJ mentioned that Article
51 recognized the existence of an inherent right of self-defence in a state
when an armed attack is directed against it, by another state, and therefore,
did not hold Israel responsible for its acts since they were measures
embarked upon in response to threats originating from occupied territories
that were not imputable to another state. On both these occasions, the court
stuck to one set of rules, and remained steadfast in maintaining their opinion
even when another occasion opened up for them to revisit the question and
study it afresh, in Congo v. Uganda,[1742] where the Court held that there
was no satisfactory proof of involvement in attacks, whether direct or
indirect, on Uganda by the Congolese government. The court also noted that
524

the attacks were not carried out by armed bands and irregular forces sent by
Congo, or on behalf of Congo. Owing to the lack of imputability, Congo was
not responsible for the armed attack, and Uganda had no basis to exercise
self-defence. In arriving at its conclusion, however, the court did not look
into the scope and ambit of the right of self-defence under the law, and did
not explore the options available to a state subject to an armed attack by a
non-state actor.
This is a particularly relevant factor in the context of terrorism. The
question itself is chiefly as to whether an act of terrorism would amount to
an armed attack under the ambit of the charter or customary international
law.[1743] Resolution 1368, adopted by the Security Council in the
aftermath of the September 11, 2001 attacks on the World Trade Centre,
notes that there exists an inherent right of individual and collective selfdefence in accordance with the Charter, and also referred to the same.
Subsequently, Resolution 1373 also reaffirmed the notion, and the Security
Council then adopted a series of binding decisions in consonance with
Chapter VII. These resolutions and measures were deemed international
terrorism a threat to international peace and security, pertaining to which the
right to self-defence would be deemed operative. Other instances also
included the affirmation of the same line of thought by the Security Council
in resolution 1701 (2006) in the context of attacks by the Hezbollah on
Israel.
In pursuing self-defence against the Al-Qaeda, the United States notified the
Security Council in October, 2001, and relying upon Article 5 of the NATO
Treaty, along with other members of the NATO, which allows the deeming
of an armed attack against one member an attack against all the members,
and thus they would be allowed to exercise self-defence. In addition, the
Inter-American Treaty of Reciprocal Assistance, 1947 was also invoked.
Both provisions make references to armed attacks and the right of selfdefence, and all members accepted that the incident was an armed attack
under the ambit of the two relevant provisions of the UN Charter. However,
in practice, neither treaty was activated because the United States embarked
on activity on its own initiative, with a few of its allies. Ten years later, the
United States succeeded in killing Osama Bin Laden, in Abbotabad in
Pakistan. While primarily asserting its stance as having been indulgent in
action in pursuit of its inherent right of self-defence, the United States
repetitively asserted that its actions were entirely in keeping with the
mandates of international law. However, international response to the series
of events has been mixed, with criticism and support from different quarters.
525

Another question pertaining to the issue of self-defence is as to whether

there exists a right to anticipatory or pre-emptive or preventive selfdefence. Before going into whether such a right exists, it is necessary to
differentiate between anticipatory self-defence and pre-emptive selfdefence. Although sometimes subject to interchangeable usage, there is a
difference between both based largely upon the threshold that has to be met
before they can be exercised. For anticipatory self-defence, the prerequisite
is a palpable and imminent threat of attack, and for pre-emptive selfdefence, the prerequisite is a conjectural and contingent threat of possible
attack.[1744]
The Bush Doctrine is a classic example of pre-emptive self-defence, being
that it allows the use of pre-emptive force against putative enemies before
they have the capability to attack the United States.[1745] The doctrine
evolved following the September 11, 2001 attacks on the World Trade
Centre. The Bush administration unilaterally withdrew from the ABM
Treaty and the Kyoto Protocol, besides decrying that it had the right to
protect itself against those states that either harboured or assisted, aided and
abetted terrorism. The doctrine itself was the foundation upon which the
invasion of Afghanistan in 2001, rested. The most controversial aspect of
the entire doctrines ambit was the American policy of adopting preventive
war as a policy, whereby the United States could depose foreign regimes
that functioned as a threat- potential, or perceived- to the security of the
United States. There was no need for the threat to be immediate. In addition,
the Bush Doctrine also allowed America to infuse democracy in the worlds
polities specifically in the Middle East, since Democracy would help weed
out terrorism. The entire rubric of the Bush Doctrine only suggested an
adherence to the pursuit of American military interests while stopping at
nothing. These policies manifested themselves in the form of the National
Security Strategy of the United States.[1746] The doctrine has come under
the scanner amply, and has been the cynosure of plenty of criticism. In
addition, the concept of interceptive self-defence also exists, where an
armed attack is imminent and unavoidable, thereby allowing a state to
prevent the same from being carried out against itself.
Per se, if one were to interpret the norms prevalent in pertinence to selfdefence, it would seem that a right to exercise anticipatory self-defence
does not exist particularly since there can be self-defence only if an armed
attack aimed at the state actually does take place. However, there is no
dearth of proponents and supporters of a right of anticipatory self-defence.
The connotation attached to article 51 by those that support this right, is that
the provision does not limit the circumstances in which self-defence may be
526

exercised, especially since the term if, to them, is not to be parochially

construed as being only if. In essence, anticipatory self-defence refers to
the claim to do unto others before they do unto you, in a bid to ensure the
security of the intended victim when he who struck first could deliver an
unacceptable measure of damage, if not actually win outright.[1747] The
absence of a provision to legitimize the use of anticipatory self-defence in
international relations has not been deterrent in effect, particularly seeing
the events in 1967, enfolding as part of the Arab-Israeli Conflict. Israel
launched an attack against its neighbours in the Arab world after Egypt had
blocked its southern port of Eilat, and had then entered into a military pact
with Jordan. On the one hand, Israels act could have been saved by
deeming it a case of self-defence in response to the use of force by Egypt in
the form of an economic blockade, it also could lose legality in international
law in that it was undertaken as an anticipatory self-defence to prevent
Israel from suffering under the brunt of further harm that could have possibly
been inflicted on it following the Egyptian Governments mobilization of its
military forces to station at the border of Israel while keeping the United
Nations Emergency Force out from the confines of the area.
The trouble inherent in the quest to exercise preventive self-defence is
couched in the fact that a state would have to go into deeper intricacies in
evaluating the moves of another state in international relations. It is also
possible that an attempt at embarking upon a use of force in pursuit of
anticipatory self-defence may just end up amounting to an act of aggression
in international law. The fact that international law allows ample room for
states and actors to determine the course of action in the absence of a
specified mandate under the rubric of the law itself, is the reason for such
problems cropping up. Practically speaking, an innocent state is precluded
from striking the first blow in anticipation of aggression from a potential
striking state. The extent of uncertainty in the trajectory a state may take in
its path in international relations is room enough for the fear in the
international community to accept and accommodate an active right of
preventive self-defence.
One of the most famous incidents involving the use of anticipatory selfdefence in international law was in 1981, when Israel bombed a nuclear
reactor in Iraq. The act was carried out while claiming that the reactor was
likely to be used to manufacture atom bombs to be deployed against Israel,
and therefore Israel had a right to exercise anticipatory self-defence. In
response, the international community, through the Security Council,
condemned Israels action since there was no justification for Israel to
embark upon the act as there was no evidence that the reactor would be
527

making atom bombs. However, the analysis mentioned nothing about what
course of action Israel could pursue if the reactor posed a very real threat to
its security. In denouncing Israels conduct, plenty of states asserted that
there was no right to anticipatory self-defence in international law.[1748]
Back in 1941, the Tokyo Tribunal permitted the Dutch Declaration of War
upon Japan, as being valid on the grounds of self-defence, despite the fact
that there was no attack by Japan on the Dutch territories in the Far Eastern
side. The very fact that the Japanese polity had laid out its war aims, one of
which included the seizure of territories belonging to the Dutch polity, was
sufficient to constitute a basis for the exercise of self-defence by the Dutch
government. The United Kingdom, though, on earlier accounts, has argued in
favour of the right of anticipatory self-defence,[1749] while the Soviet
Union has indicated that anticipatory self-defence is illegal.[1750]
Anticipatory self-defence also formed the basis of the American modus
operandi in pertinence to the Libyan bombings, as America sought justice
against state-sponsored terrorism. The Israeli response in the form of an
attack and occupation on Sinai, when Egypt reinstituted its blockade of the
Gulf of Aqaba in 1967, was perceived by many members in the international
community as being a legitimate retaliation.[1751] In general, though, state
practice does not have a singular direction in the form of consolidated
unanimity. Nevertheless, the international realm generally understands that
the unilateral deployment of force in retaliation to the use or lining up of
weapons, or to the modernization of a countrys defence reserves, is far too
precarious a policy to be permitted in international relations. It is only in the
face of a rather evidently imminent armed attack by another state, that a state
may still enjoy the right to resort to preventive self-defence, however, the
question is largely dependent on the facts and circumstances prevalent in the
condition, to have a single one-size-fits all approach. In essence, therefore,
while self-defence as a genus is the only exception under the UN Charter,
the right to resort to preventive self-defence is only a small species within
that Venn diagram in its capacity as a very strictly limited exception.
Self-defence as a means of action in international relations has some
limitations in terms of its deployment as policy. Firstly, a state cannot rely
upon self-defence to settle disputes pertaining to territory and territorial
claims. A state cannot attack territory under another states possession, even
if it has a better title as opposed to the other state, as a state cannot hide
behind the armour of self-defence when it is actually using force. Though the
territory in question may be the substratum of a dispute between both states,
it is not open for a state to use force as its policy to settle its dispute,
particularly seeing as how the UN Charter mandates peaceful settlement of
528

disputes under Article 2(3). This was particularly forbidden when

Argentina invaded the Falkland Islands in 1982, the Security Council
denounced Argentinas acts and demanded its immediate withdrawal from
the islands through Resolution 502 (1982). Despite the fact that states voting
for the resolution concluded that Argentina had a better title than the United
Kingdom, the pulse was generally antagonistic to Argentinas display of
force to lay claim over the territory. Conversely, even if the state facing such
attack has a lesser titular right to the territory in question, it is permitted to
exercise self defence against the state attacking it, though such state has a
better claim over the territory. This was the basis on which Iran and Kuwait
in 1980 and 1990 respectively, had a right of self-defence when they were
attacked by Iraq.
The right of self-defence is not restricted to individual states alone, but also
exists in the form of collective self-defence, as mentioned under Article 51.
Interpretation, once again, has a two-fold path. While one view supports the
notion that collective self-defence is nothing more than a combination of
individual rights of self-defence, another point of view suggests that no state
may defend another state unless it is found true that every state has a legal
right to exercise self-defence in the same set of circumstances. State
practice suggests the reliance on a regional support created by states coming
together. A cursory glance at the NATO and the Warsaw Pact indicate that
all the states deem an attack on one of them as an attack against all of them,
and hence agree to come together to exercise self-defence in conjunction,
should it be necessary. In the Nicaragua Case,[1752] the ICJ noted that
there did exist a right to collective self-defence under the ambit of
customary international law, but also noted that the exercise of the right
hinged upon a declaration made by the state concerned, that it was indeed a
victim of an armed attack, and sought the assistance of another state, or
states. These rules were exampled in the requests made by Kuwait and
Saudi Arabia, to the United States and its allies in 1990, when Iraq invaded
and occupied Kuwait.
Retorsion
A retorsion refers to the adoption of an unfriendly act by one state, lawful
though harmful, in order to retaliate against any legal but harmful acts of
another state. These acts are acceptable under international law as long as
they keep within the permissible ambit of the law. Some acts of retorsion
include the severance of diplomatic relations and the expulsion of aliens,
imposition of economic restrictions and travel-related restrictions. Even the
undertaking of a lawful act in retaliation to a prior unlawful activity amounts
529

to a retorsion. In essence, a retorsion allows a state to keep within the

confines of the law while signifying its displeasure towards the harmful
albeit legal acts of another state. A common example of a retorsion is the
series of Hickenlooper Amendments to the American Foreign Assistance
Act, given that the United States was mandated to suspend foreign aid to any
country nationalizing American property without giving them proper
compensation, and was deployed only once against Sri Lanka, but is no
longer in existence after having been repealed by the American Foreign
Assistance Act of 1973.[1753]
A retorsion is typically a species of retaliation in kind, and may not
necessarily comprise acts identical with those that have been used in giving
offence, although in principle it is essential that the acts carried out in
retorsion are analogous, and proportional. The most prevalent form of
retorsion in present day international relations is commercial, in that states
are found indulging in tariff wars. The pricing and determination of rates of
taxes are permissibly the prerogative of each state, and therefore, when
undertaken in response to another states unfavourable though legal activity,
there is no violation of the law.
Reprisals
A reprisal refers to an act primarily illegal in nature, but adopted by one
state in retaliation for the commission of an earlier illegal act by another
state. The primary distinguishing factor that sets a reprisal apart from
retorsion is that the former is inherently illegal, while the latter is accepted
under the ambit of the law. The idea behind a reprisal is to ensure that there
is redress for injuries suffered. Reprisals can include the seizure and
confiscation of public property or private property, the restraint of
intercourse of any form- whether political, commercial or general.
Reprisals formed an important part of the Naulilaa dispute,[1754] where a
military raid was conducted by Germany on the Angolan colony, destroying
property in retaliation for a mistaken killing of three Germans, who were
lawfully present on Portuguese territory. While dealing with the Portuguese
claim for compensation, the tribunal noted that before undertaking a
reprisal, it is necessary for a sufficient justification in the form of the
existence of a prior act in violation of international law. Once that is
established, it is also necessary that the act of reprisal be preceded by a
demand for reparation left unsatisfied. The reprisal itself has to be
proportionate to the prior unlawful act, and it is extremely important that the
reprisal embarked upon is a last resort. The German act did not qualify as a
reprisal since it did not satisfy the three elements. In addition to these
530

generic rules, the prohibition of the use of force and the threat to use force,
as mentioned under article 2(4) of the UN Charter, is also an important
factor to be taken into consideration while determining the propriety of an
act in context of a reprisal.
In effect, therefore, reprisals that do not involve the use of force may be
undertaken as part of international policy, in conformity with the right of
self-defence.[1755] Generally speaking, reprisals taken during peacetime
are unlawful, unless they fall within the framework of self-defence, as
armed reprisals in time of peace are deemed unlawful, and all rights to
reprisals should be governed inter alia by principles of necessity and
proportionality.[1756]
Pacific blockades are often deemed reprisals, especially seeing as how they
have been deployed as a tactic in international politics to apply pressure
against weaker states, in the absence of warfare and actual armed
hostilities.[1757] The present trend in international relations, however, is
that the Security Council alone is vested with the right to impose pacific
blockades, and not states. In 1962, when the United States imposed
quarantine on Cuba, it claimed to be doing it in consonance with
international law. However, one cannot deem this an example of a pacific
blockade permissible in international law.[1758]
Countermeasures
Reprisals short of force are usually termed countermeasures in international
law.[1759] Specifically mentioned under Article 11 of Part 2 of the ILC
Draft Articles explains the scope of the law in relation to countermeasures
by an injured state, while Article 12 explains the conditions relating to
resort to countermeasures. Article 13 speaks of the necessity to keep to
proportionality, and article 14 enumerates all kinds of prohibited
countermeasures. Third states that are not affected by an illegal act of a
state, are also allowed to embark on a series of countermeasures, if the
obligation breached by the wrongdoing state is a violation of an erga omnes
obligation, since all states in the international community have a duty to
protect such obligations.[1760]
International law imposes a restriction on the use of force in exercising a
policy of countermeasures, except where it is undertaken as a retaliatory
measure in self-defence against an armed attack. In addition, the
countermeasure should necessarily be proportional to the original unlawful
act. It is also necessary that countermeasures be in keeping with the confines
of the ambit of the law, in that there is no violation of jus cogens norms.
Intervention
531

Non-intervention is a prohibited act under international law. The principle

is founded on the core concepts of territorial sovereignty, equality of states
and political integrity accorded to all states alike, under international law.
Intervention is particularly prohibited when it weighs down on matters that
fall within the exclusive domain of state independence, where the state is
allowed to decide freely. Intervention is prohibited in all circumstances
where it impinges on the independence of another state in its rights to
determine its own internal and external affairs. In the Nicaragua Case,
[1761] the ICJ noted that a state has its right to choose its political,
economic, social and cultural systems, and also to formulate its foreign
policy.
Intervention also takes on overtones of invalidity when it is undertaken with
coercion and force. International law does not offer a generic right to
intervene in another states affairs, in support of a campaign of opposition
within such other state. Consequently, therefore, a state cannot pursue a
quest for regime change while claiming to support a campaign launched in
antagonism to a particular gubernatorial authority.
The rule of non-intervention exists both, under customary international law
and under international law as enunciated by treaties and conventions. An
act that is tantamount to a violation of the customary rule prohibiting
intervention is also deemed a violation of international law, particularly
when it involves a use of force- a case where there is a violation of two
primary norms under customary international law.
The basis of non-intervention as the rule in international law is the principle
of sovereignty and equality of states, given that international relations are
built on the strong foundation of anarchy. Each state is construed a unit equal
to the other, and therefore, any intention to intervene in another state is
frowned upon, and an actual act of intervention is not accepted.
In international relations, a specific species of intervention, on the grounds
of humanitarian protection, has evolved. States in the international
community have sometimes asserted the need to intervene in the affairs of
another state, so as to protect the lives of people living in that state- though
they may not be nationals of the state seeking to intervene. In the era
preceding the UN Charter, such intervention was accepted amply.[1762]
However, the endeavour to intervene on humanitarian grounds does not
seem acceptable while keeping with Article 2(4) of the UN Charter, unless
one could relax the rule to the extent of allowing the temporary violation of
territorial integrity, or hypothesize that such a right exists within the
unwritten realm of customary international law.[1763] Although several
532

states have resorted to the use of humanitarian intervention in their policies,

the practice is generally frowned upon, particularly since it only paves the
way for the justification of stronger states in their endeavour to forcefully
intervene in the territories of the weaker states.[1764] However, in
instances where plenty of lives are in jeopardy, and there is a consequent
saving of several people from the throes of a worse fate, or where a state
and its peoples face an extreme humanitarian crisis, humanitarian
intervention has been supported and is acceptable.
Some of these instances are undertaken by states by interpreting resolutions
of the Security Council, as being situations in need of intervention on a
humanitarian ground. Western troops entered Iraq in the aftermath of the
Gulf War in 1991, claiming that it was done with the sanction of the Security
Council through Resolution 688 (1991) that condemned the repression of the
Kurdish and Shia populace in Iraq, by the Iraqi government. However, a nofly zone was proclaimed by the United States, the United Kingdom and
France, although none of it was permitted by the UN. However, the three
states sought to justify their action as being a necessary course of action in
response to a situation of overwhelming humanitarian necessity.[1765]
Again, the same was done in the context of Kosovo in 1999, when the
NATO embarked upon a bombing campaign, acting well outside the scope
and ambit of the UN authorization, while asserting that it sought to support
the Albanian population in that segment of Yugoslavia, which was facing a
humanitarian crisis. In justifying its action, the UK noted that in international
law, in exceptional circumstances, and in a bid to avoid a humanitarian
catastrophe, military action may be instigated.[1766] However, a
subsequent Security Council resolution condemning the NATOs actions
was rejected by a 12:3 vote, which in all probability was consequent to the
fact that the NATO states involved in the events constituted a majority
amongst the permanent members of the UN Security Council. After the
withdrawal of Yugoslav forces from the territory, forces were stationed
under the UN, and the NATO and Yugoslavia arrived at an agreement.
However, there was neither international denouncement nor endorsement of
the NATO action. More recently, the NATO has once again intervened in
Libya on the pretext of Security Council resolution 1973, citing
humanitarian intervention as its basis. However, criticism is rife
particularly seeing as how there has been no humanitarian angle, and
instead, is a quest for regime change. The doctrine of humanitarian
intervention has not been overtly or expressly condemned in international
law, and has only achieved meagre support thus far.
The United Kingdom, however, prepared a set of Policy Guidelines on
533

Humanitarian Crises in 2001, mentioning a host of principles. Among other

things, it mentioned that the UN Security Council should take the initiative to
authorize action to cease or avert massive violations of humanitarian law,
and that in response to crises of such sorts, force may be resorted to in the
event of overwhelming and immediate humanitarian catastrophes being
likely, when the government of the state concerned either cannot or will not
avert the same, and when all other means of non-violent policy have been
exhausted. In addition, it also noted that the scale of actual or potential
damage and suffering justifies the risks emanating from military action. If
there is evidence that the activity is being undertaken to avert the
catastrophe, there is no doubt that the action would be acceptable. In
addition, the guidelines also mentioned that the use of force should be
collective, limited in scope and proportionate to achieving the ultimate
humanitarian objective, and be in keeping with international humanitarian
law.[1767]
Some instances show that humanitarian intervention is undertaken in a bid to
restore democracy, and states generally contend that it is acceptable on
account of supporting one of the key values of statehood in modern
international relations.[1768] This was invoked as the basis for the
American intervention in Panama, in December 1989, and for the NATO
intervention in Libya in 2011. However, even when couched behind lofty
rhetoric, there is nothing in the UN Charter or in international law to
warrant the intervention of one state into another, even if democracy is cited
as a basis. Even if one were to interpret the right of self-determination as
including democracy, there is no basis for one state to intervene.
The norm of R2P, or the responsibility to protect, has also become a strong
factor on which states rely, to assert justifications for their intervention in
the affairs of another state. As a concept, the responsibility to protect is
essentially composite, in that it implies the responsibilities of the
international community to prevent catastrophe, to react immediately, and to
rebuild an affected regime following a catastrophe.[1769] The approach is
basically no different from humanitarian intervention, and if anything, is
only an extra coat of glamour accorded to the original form and structure of
humanitarian intervention. When broken down, the democratization of one
state at the behest of another state in international law only comes across as
an erosion of international values of retaining the political independence of
a state, and is merely a case of regime change.
Amidst a host of news reports and ghastly images emanating from the zones
under humanitarian intervention each telling terrible stories peppered with
534

statistics that do not show things in good light, there are feeble voices of
observers and analysts, questioning the very validity and feasibility of this
means of intervention. Traditional international law prohibits the use of
force on all accounts under Article 2(4) of the UN Charter, which has
attained the massively exalted position of jus cogens. Save for self-defence,
as explained under Article 51 of the UN Charter, there is simply no
exception to the prohibition on the use of force. These two rules put together
spell out some of the basic founts of international anarchy upon which
international relations is built- state sovereignty and equality of states.
Consequently, one wonders how humanitarian intervention could carve a
niche for itself- especially since the general viewpoint favours the notion
that most of them are just interventions with a humanitarian pretext- a veiled
sham.
But there is no doubt that the international community is left with frugal
choice, when states are clearly in distress and need help. Especially with
the transnational nature that the basic norms of human rights have attainedfor it is a duty of every state to enforce these rights and guarantee them to the
people- it is wholly impossible to expect a state to turn away from helping a
state, a people and a polity in distress. However, looking at the past few
events, one cannot help but note that there has been a crossing of lines. A
thin red line divides a case of intervention on truly humanitarian grounds,
and on a mission to seek a regime change while coating the attempt with a
glossy sheen of being a humanitarian move.
Therefore, knowing that it is fundamentally a necessity in the wake of
atrocious events transpiring in some regions of the world, there needs to be
a set of ground rules to understand exactly what is allowed and what isnt,
and therefore to quell attempts to toe the line. Primarily, there needs to be a
definitive outline of what the term implies, and comes to mean.
Humanitarian intervention is a term relied upon to prevent or stop a gross
violation of human rights in a state. Practically speaking, in terms of the
intent, it differs from illegal intervention in that the ultimate gain is for the
people of the state intervened into, and is neither performed wilfully, nor
undertaken to alter the authority structure of the target State. This should be
the very basis of all forms of humanitarian intervention. There must be a
moral standard to a policy of intervention. There is no doubt that the moral
standard itself is one of subjective cadre, although intertwined with one
tangible element of objectivity. Humanitarian intervention needs to
necessarily be undertaken by studying the moral and traditional values of the
state seeking to intervene, while conforming wholly to the expected standard
and yardstick of behaviour of states under the international realm, and also
535

must conform to the obligations owed by the state in respect of human rights
and the upkeep of peace and security world over.
Secondly, the means that are permitted to be deployed to deal with
humanitarian intervention is to be defined with a clear scope and ambit
being outlined. There is nothing humanitarian about the modus operandi
deployed in such kinds of intervention. Drones, high-flying aircrafts that
drop bombs and missiles are used aplenty, claiming civilian lives in the
process. In effect, the purpose driving states towards humanitarian
intervention itself is destroyed. The most common criticism against the use
of military force for humanitarian reasons is that it does not do what it sets
out to do. This should be settled by exploring various options of peaceful
settlement upon intervening in the state.
Thirdly, the outcome of such intervention needs to be clear. Humanitarian
intervention is built fundamentally on the precept that a states sovereignty
can be dishonoured for moral prerequisites, in that a crisis has to be
averted. The result that is to be achieved needs to be charted out first,
before a state embarks upon intervention. If the method used involves force
and violence, the goal is hardly going to be achievable if all that the target
uses violence.
States must understand and come to accept the fact that humanitarian
intervention is more of an investment and a commitment and not a frivolous
use of weapons in another states territorial domain. It makes more sense to
have a set of rules jotted down, because in the present state of a banana
republic that prevails where humanitarian intervention is concerned, states
are left to redefine the law each time they embark on a journey of
humanitarian intervention.
Civil Wars: the use of Force, Intervention and Third State
Participation
A civil war is essentially a war between two or more groups, usually taking
place within a state, between two or more groups of inhabitants of the state
itself, of which one state may be the government itself.[1770] Most civil
wars involve a fight for the control of the government of a state, and
sometimes, in pursuit of secession by a segment of the population, to form a
new state.[1771] In addition, there may be civil wars in pursuit of
gubernatorial privileges and concessions, or in the event of government
inertia in preventing some issues plaguing the populace.
Historically, several international wars have had roots in civil wars, to
name one- the conflict between the Arab States and Israel was consequent to
536

hostilities that transpired between the Jewish and Arab communities in

Palestine in the tail end of the British Mandate to administer Israel.[1772]
With both World Wars painting horrific pictures that the international
community endeavours to steer clear from repeating, most states have done
their best to avoid expanding their territorial expanse by invading other
states and their territories, and instead, turned its attention towards domestic
politics where the quest is reliant on a consolidation of power, or in a bid to
retain their power while expanding their influence in the region, sometimes
deriving encouraging influence from other states sharing a similar ideology.
Consequent to a common ideology that transcends the limits of boundaries,
there have evidently been plenty of civil wars, some of which have
threatened to burgeon into a war of greater proportions, by taking on an
international character. Some civil wars also have overtones of ethnonationalistic and racial considerations, which in turn tend to make
international support a larger phenomenon.
The individuals, who embark upon a civil war to create a new government,
or a new state, are generally deemed insurgents. The government in power
at the time of their revolution is called the de jure government, although
most international scholars prefer calling them established authorities.
Although a use of force is prohibited in international relations, nothing in
international law prohibits the use of force at the domestic level. By
embarking upon a civil war, there is no violation of international law, with
the exception of the use of force to break the exercise of a legal right of selfdetermination.
Generally speaking, foreign intervention in a bid to support insurgents is
frowned upon in international relations. This was explained explicitly in
UN General Assembly Resolution 2131 (XX), which notes that no state
shall organize, assist, foment, finance, incite or tolerate any form of
subversive, terrorist or armed activities directed towards the violent
overthrowing of the regime of another State, or to interfere in the civil strife
in another state.[1773] This principle has also been accepted with
affirmation in subsequent resolutions of the UN,[1774] and by the ICJ in the
Nicaragua Case,[1775] where it laid down that the United States had in
fact violated international law by assisting the contras, who were rebelling
against the government of Nicaragua. The court also noted that the
participation in a civil war, by organizing or encouraging the organization of
irregular forces or armed bands, for the incursion into the territory of
another State and by participating in acts of civil strife in another State, a
state is liable not only an act of illegal intervention in the domestic affairs of
a foreign state, but also for the violation of the principle prohibiting the use
537

of force. The sole exception to the rule is the instance of foreign assistance
being given to the established authorities. In such cases, when states find
that the insurgents have a justified cause in seeking outside assistance,
tendering aid to them does not violate international law. This was seen to
have occurred in 1979, when the Soviet Union invaded Afghanistan, and
Egypt offered and provided military training and weaponry to the Afghani
insurgents against the Soviet-backed government, and Saudi Arabia gave the
insurgents monetary assistance.[1776] This is in effect, a case of counterintervention, undertaken in a bid to ensure the protection of the
independence of the state where the civil war takes place. Sometimes, there
are instances where national liberation is supported by foreign powers, and
although some regard it an acceptable exception to the prohibition in
international law, there is plenty of controversy shrouding the issue. The
1965 Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States, and the 1970 Declaration on the Principles of International
Law both emphatically denounce the rendering of assistance to the
insurgents of a state, by foreign states. The 2011 Arab uprisings,
specifically Libya, witnessed a case of humanitarian intervention slowly
transcending into becoming a case of assistance to the insurgents in the
region, in their revolutionary move to overthrow their President, Muammar
Gaddhafi.
Sometimes, the converse is also a possibility, where the government is
given support from third states. In general understanding amongst members
of the international community, and in terms of the standards established
under international law, giving help to the established authorities in a civil
war is legal and acceptable. The primary assumption upon which this action
is permissible, is that the government functions as an agent of the state, and
is therefore the official authority on behalf of the state until it is overthrown.
The rule is not without exception, though, which arises in the event that the
insurgents have been recognized and accepted as belligerents,[1777] and
when the rules of neutrality are applicable to the situation, at which point
foreign help becomes illegal. However, the exception does not hold good in
the modern times, considering that it was a regular practice to recognize
belligerency in the nineteenth century civil wars, but was hardly followed in
the civil wars of the 20 Century.[1778] The basis underlying the propriety
accorded to the support lent to the government of a state towards
suppressing a revolt is the principle of intervention with the governments
consent, and on account of such consent, there is no violation of sovereignty.
[1779] However, the state intervening thus is under an obligation to ensure
that it keeps within the confines of the permitted intervention, as an abuse of
th

538

the invitation to intervene is a violation of sovereign rights. When the Soviet

Union intervened in Hungary in 1956, in Czechoslovakia in 1968 and in
Afghanistan in 1979, it justified its actions on a fabricated assertion that the
basis of its actions were entirely consequent to the invitation to intervene by
each states government.[1780] Similar instances include the US
intervention in the Dominican Republic in 1965 and in Grenada in 1983.
Several states in the international community rejected the American
contention that it was intervening on invitation, and instead noted that it was
a case of illegal intervention. Nevertheless, it would be absurd to wholly
rely upon the rule that intervening to support the government is acceptable in
international law, since the government itself may be guilty of wrongful
conduct within its domestic terrain, and still other times, there may be
flagrant instances of abuse rendering it difficult to determine which the
insurgents are, and which the established authorities really are. A
government need not necessarily be competent to act until it is officially
overthrown, and civil wars tend to question that very aspect.
The easiest course of action in such instances is not to intervene in a civil
war, as was seen to be the case in the context of the Spanish Civil War,
where all states in Europe decided not to intervene. Nevertheless, the policy
did not see the light of day where its implementation was concerned
because of the fascist and communist dictatorships that refused to abide by
the rule. However, there is no consistency or clarity in state practice.
Though at one time, a rule of non-intervention was sworn by, the British
Government actively supported the Nigerian government by supplying arms
in a bid to quell a civil war, while also refusing to assist the insurgents. The
basis for its actions, as the British Government mentioned, was that the
insurgents were not recognized as belligerents. The 2011 Arab uprisings
witnessed a case of objective modification, where the Security Council
recommended humanitarian assistance to restore peace, but a violent
intervention was originally perpetrated, and slowly turned out to become a
case of foreign assistance for the rebels. The bifurcation of morality and
law needs to underlie the decision, for although one side may be decidedly
right on moral grounds, the law precludes the intervention of a third state
into the affairs of another state.
Use of Force in Self-Determination
Self-determination, oftentimes deemed a third-generation human right, is the
right of a people living within a territorial region, to determine their own
political, legal, social and cultural states and that of the territory they belong
to. This may come to be in the form of setting up an own state, or by
choosing to secede and become a part of another state.[1781] The right used
539

to be provided by treaties in the form of a plebiscite in the pre-UN era, an

example for which is the 1919 Treaty of Versailles in the context of Upper
Silesia, which was to go to either Germany or Poland, according to the
decision of the populace. Back then, without a treaty provision to such
effect, there was no right to self-determination.
The UN Charter speaks of self-determination of people, along with the
principle of equal rights, specifically under Article 1(2), Article 55 and
implicitly under Article 73 and Article 76(b), in the context of colonies and
dependant territories. In addition, the International Convention on Civil and
Political Rights 1966 and the International Convention on Economic and
Social Rights, 1969, also speak of self-determination as a recognized right
of people. However, there is no explanation as to what the right itself
implies. The manner in which the right itself has evolved to take the shape
of its present form, was hardly within the envisaged framework of the
framers of the UN Charter. The Declaration on the Granting of Independence
to Colonial Countries and Peoples, 1960 and the two Human Rights
Conventions mentioned above have been instrumental in defining the scope
and ambit of the right itself. The 1970 Declaration on the Friendly Relations
of States has been the most important document thus far, as it describes the
right to self-determination as including the right of all people freely to
determine, without external interference, their political status and to pursue
their economic, social and cultural development and the duty of every state
to respect this right in accordance with the provisions of the Charter. The
most common methods followed to achieve self-determination, as
mentioned under the declaration, include the creation of a sovereign and
independent state, the free association or integration with another state, and
the choice of any other political status freely accepted by the people. As
such, the principle has been accorded the status of jus cogens, and as an
erga omnes obligation,[1782] and a violation of the right attracts state
responsibility and is tantamount to an international crime, as explained
under Article 19 of the ILC Draft Articles on State Responsibility.
In practice till date, there has been more importance accorded to selfdetermination in non-self governing, trust and mandated territories, although
the resolutions and human rights documents all accord all people with the
right to self-determination. If there are people within a territory, deemed
under international law as being possessive of the right to selfdetermination, and the government administering the territory does not allow
them to exercise the right, the populace may have to indulge in a violent
course of action to ensure that they are given their freedom.[1783]
Consequently, therefore, there is every authority for those rightfully entitled
540

to a right of self-determination, to actually indulge in the use of force to

attain their freedom. However, a use of force in suppressing, preventing or
controlling the lawful exercise of self-determination is not permissible in
international law, as all armed action and repressive measures directed
against dependent people shall cease to enable them to exercise their right
to complete independence.[1784]

Chapter 22- International Humanitarian Law

The law governs two different aspects in pertinence to the use of force in
international relations, namely, the resort to force itself, called jus ad
bellum, and the actual conduct of hostilities, called jus in bello. The former
has already been dealt with in the preceding chapter, while the present
chapter is concerned with the question of the conduct of hostilities itself.
This branch of international law is called the law of armed conflict, or
international humanitarian law- which primarily denotes the inherent
humanitarian purpose underlying the law itself. The branch of law covers
different aspects, such as the treatment of prisoners of war, civilians in
occupied territory, sick and wounded army personnel, permitted and
prohibited acts in warfare and the rights of civilians during the time of war.
[1785] The body of law comprises a confluence of both, international
conventions and treaties, and customary international law.[1786] This is
particularly useful in allowing non-members to a treaty, to be adherent to the
law, while of course, the treaty provisions themselves will bind only
members and signatories. This was seen to have taken place in the context
of Eritrea, which was not a member of the conventions concerning
International Humanitarian Law, as the Eritrea-Ethiopia Claims Commission
applied customary humanitarian law while determining claims.
The emergence of the Laws of War as it exists in the present day goes back
to the nineteenth century, consequent to the pioneering work of Henry
Dunant, in 1864.[1787] Dunant, after seeing the brutality of the Battle of
Solferino in 1859, championed the cause of creating a legal regime within
whose confines war would be carried out, should it be carried out at all.
With this, the Geneva Convention for the Amelioration of the Condition of
the Wounded in Armies in the Field was adopted, in 1864, which was then
subject to a revision in 1906. In 1868, the Declaration of St. Petersburg
prohibited the use of small explosive or incendiary projectiles in warfare.
The laws of war were officially codified during the Hague Conferences,
541

held in 1899 and 1907.[1788] In both these conferences, plenty of

conventions were adopted in pertinence to land and naval warfare, which
form the very basis on which the present legal regime subsists. At that
juncture, the view was that belligerents were bound by the law of nations,
and the use of force against villages and towns that were undefended were
entirely forbidden. The conventions enumerated details of those entitled to
the belligerent status, defined the measures that had to be taken in respect of
occupied territory and outlined the provisions in pertinence to the rights and
duties of neutral states and persons in case of war being waged.[1789] The
conventions also imposed a ban on the deployment of arms, projectiles and
other material capable of causing unnecessary suffering. Although these
principles were lofty, there wasnt any enforcement measure, nor any means
to implement the measures mentioned. Therefore, plenty relied on the
actions that the states themselves had to take, in terms of reciprocity,
morality and mutual assistance. In 1929, the 1864 and 1906 instruments
were revised, and provided rules pertaining to the wounded and sick in the
armies on the field, and prisoners of war.
The next phase was marked by the 1949 Geneva Conventions, four in
number, dealing with issues such as the amelioration of the condition of the
wounded and sick in armed forces in the field, the amelioration of the
condition of wounded, sick and shipwrecked members of the armed forces
at sea, the treatment of prisoners of war and the protection of civilian
persons in time of war. The conventions, though fundamentally built on the
tenets laid down by its predecessor legal documents, were actually an
improvement in that there was plenty done to protect civilians left at the
mercy of states that they were not nationals of, on account of armed conflict.
The 1949 Conventions were built on the fundamental notion that those not
engaged in war actively would have to be treated humanely, as befitting
them. Consequently, therefore, the Conventions outlaw the taking of
hostages, torture, illegal executions and the conduct of harmful acts against
those protected by the Convention. Additionally, they also mention that a
standard of care of prisoners of war and prohibition of deportations and
indiscriminate destruction of property in any occupied territory.
The scope of the Conventions was expanded with the addition of two
Protocols in 1977, enumerating provisions that were already present in
customary international law, and also evidencing progressive development
of the law itself. Protocol III, adopted in 2005 added a third emblem to the
erstwhile already recognized symbols of the Red Cross and the Red
Crescent, namely, the red diamond inside which the Red Cross or Crescent,
or such other symbol as used by the State Parties was inscribed.
542

While discussing international humanitarian law and its scope and ambit,
the ICJ, in its Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons,[1790] noted that the Law of The Hague, or the rules that
related to the laws and customs of war, and the Law of Geneva, pertaining
to the protection of persons from the effects of armed conflicts, had actually
become a single, complex system comprising the field of International
Humanitarian Law as it stands today.
Conflicts
International humanitarian law applies to armed conflicts. The term armed
conflict, however, has no explanation or definition under any of the legal
instruments governing international humanitarian law, although there are
observations to the effect that if there is any difference between states,
leading to the intervention of members of the armed forces, it amounts to an
armed conflict, and that an armed conflict is essentially deemed to exist in
the event that there is resort to armed force between states, or the
deployment of protracted armed violence between governmental authorities
and organized armed groups within the state.[1791] The fundamental scope
and ambit of international humanitarian law pivots around the scope and
ambit of the understanding of the different kinds of conflicts, since the
difference in definition is a largely decisive factor in determining whether
the body of rules can apply, or not.
An international armed conflict involves the armed forces of at least two
states. Therefore, it is a necessary prerequisite that there are two states, as
warring factions. A non-international armed conflict is a confrontation that
takes place within the confines of the territory of one state, between the
regular armed forces and identifiable armed groups, or between one or
more armed groups. Internal disturbances refer to the instances where a
state uses armed force in order to restore and maintain order, but there is no
full-fledged armed conflict taking place. The most common examples of
internal disturbances include riots, communal tensions and struggles
between different factions amongst themselves, or between different
factions and the authorities. Internal tension refers to the absence of internal
disturbances, but where force is deployed as a preventive measure to ensure
that the law is maintained.
Historically, a basic distinction between both brands of conflicts has been
outlined, built on the foundation of inter-state relations and intra-state
functions. The term armed conflict was explained in the decision of the
Tadic case,[1792] where the Appeals Chamber of the International Criminal
Tribunal explained that the concept of armed conflicts were inclusive of the
543

exact time and place of the actual hostilities as they are carried out, and
explained that International humanitarian law applies from the initiation of
such armed conflicts and extends beyond the cessation of hostilities until a
general conclusion of peace is reached; or, in the case of internal conflicts,
a peaceful settlement is achieved. Until that moment, international
humanitarian law continues to apply in the whole territory of the warring
states or, in the case of internal conflicts, the whole territory under the
control of a party, whether or not actual combat takes place. The definition
was framed in keeping with the events that transpired in Former Yugoslavia,
where there was a doubt as to whether there was an international or noninternational armed conflict, or a hybrid of both. Although the issue was
deliberated upon by the Security Council, there was nothing done to
explicitly classify the nature of the conflict itself, for words were employed
only to condemn violations of international humanitarian law. Given the
increasing number of incidents involving the occurrence of internal
conflicts, and also considering the extent of brutality in the conduct of these
hostilities, the international community has been actively accepting of the
intention of allowing international humanitarian law to apply even to
internal armed conflicts.[1793] As was explained in the Tadic Case,[1794]
the Appeals Chamber had jurisdictional rights over violations of the laws or
customs of war, irrespective of whether they were found to occur in an
internal or an international armed conflict. Furthermore, as was mentioned
in the decision itself, it is not impossible for internal conflicts to burgeon
into an international armed conflict, since an internal armed conflict may
take on international overtones if another state intervenes in the conflict
through the deployment of troops, or, if some of the participants in the
internal armed conflict act on behalf of another state. The Tadic Case,
[1795] also put down a test to determine whether an armed conflict is
internal or international, and if it was an internal conflict, as to whether it
turned international or otherwise. To this extent, Article 4 of the Third
Geneva Convention was examined, in the context of defining the prisoners
of war status. The Appeals Chamber asserted that states have, in past
practice, accepted that belligerents may deploy paramilitary units and other
irregulars in the conduct of hostilities, on the sole condition that those very
belligerents are willing and prepared to take responsibility for any
infringements committed by the forces. In order for any irregular entities to
amount to lawful combatants in status, it is necessary for control to be
exerted over them by a party to an international armed conflict, which in
turn pointed in the direction of a control-based relationship, exhibiting
control on the one side, and either dependence or allegiance, or both, on the
544

other side. The control test as laid down by the International Court of
Justice in the Nicaragua Case,[1796] was discarded in favour of a rather
weak test, noting that to attribute the acts of a military or a paramilitary
faction to a state, it is necessary to prove that the state wields overall
control over the group, not limiting itself to equipping and financing, but
also coordination and assistance in the form of general planning of its
military activity. The Appeals Chamber also noted that the state should issue
instructions that direct the commission of specific acts in violation of
international law, to the group itself, or to its head. Subsequently, in the
Kunarac Case,[1797] the Appeals Chamber discussed the question of
whether an armed conflict can be deemed to exist if the fighting is sporadic,
and remains restricted to only a certain part of the state. It was held that the
laws of war would be applicable in the entire territory of the states in
armed conflict with one another, or, in the event of an internal armed
conflict, to the entire territory falling under the control of a party to the
conflict, irrespective of whether actual combat occurs in that region, and
continues to apply until there is either a conclusion of peace or a settlement.
International humanitarian law applies in two situations, in that it offers two
key systems of protection. It is principally intended to apply in the context of
international armed conflicts, in which case the four Geneva Conventions
and Additional Protocol I apply. For non-international armed conflicts,
common article 3 and Additional Protocol II apply. The rules contained
under Article 3 are considered reflective of customary international law,
and represent a minimum standard of protection from which belligerent
entities should never depart. International humanitarian law does not have
any applicability to situations of violence that do not amount to an armed
conflict in terms of intensity. Such instances fall within the domain of human
rights law and domestic laws. In respect of each sphere that humanitarian
law applies to, the protections accorded are enumerated under the
conventions accordingly.
Understanding Humanitarian Law
A large part of International Humanitarian Law is found in multilateral
treaties, although plenty of their rules exist under customary international
law and under the ambit of state practice. However, the multilateral treaties
comprising humanitarian law do not have any reciprocal obligations, in that
if the treaty is violated by one party to the conflict, another member of the
same treaty cannot respond to the breach in a like manner, by committing a
different breach of international humanitarian law.
Primarily, it is a body of rules, which, during wartime, protects all those
545

persons who are not, or who are no longer participating actively in the
hostilities. Humanitarian law imposes limits on the methods and means one
may use to indulge in warfare. The core purpose of humanitarian law is to
prevent and limit the extent of suffering imposed on people during an armed
conflict. As a rule, it is mandatory not only for the government, but also for
their armed forces, and all other armed opposition groups and other parties
to a conflict.
The entire scope and ambit of humanitarian law, although contained in part,
in the domain of customary international law, is generally construed to be
found within the ambit of the four Geneva Conventions of 1949, and their
two Additional Protocols of 1977. In addition, there are other texts, such as
the Geneva Protocol Banning the Use of Gas, the 1980 UN Convention on
Certain Conventional Weapons and the Ottawa Convention on landmines.
The four conventions of 1949 are applicable to all forms of international
armed conflicts, and as per common Article 3, the Convention allows the
ICRC to offer its services in the event of non-international armed conflicts,
and also accords a minimum level of protection to the victims of all such
situations. The 1977 protocols are supplementary to the Convention itself,
and aim essentially to limit the deployment of violence and also offer
protection to the civilian populace by making the rules governing the
conduct of hostilities more stringent.
Humanitarian Law and Human Rights
Law
International humanitarian law and human rights law, for the most part, are
considered complementary branches of law, in that both seek to protect the
lives, liberties and dignity of humans, although at different times and under
different conditions. While humanitarian law essentially applies in
situations of armed conflicts, human rights law protects civilians at all
times. However, it is not impossible for the government of a state to suspend
the operation of certain human rights in the wake of a public emergency,
although there are certain rights that will always be ensured, since these
rights are such that there should be no derogation from them whatsoever.
Humanitarian law seeks to protect those that are either no longer taking part
in hostilities, or those who do not take part in hostilities itself. Duties are
conferred upon all parties to a conflict. However, human rights law applies
primarily during peacetime for everyone, and does not deal with the conduct
of hostilities. The duty of implementation of human rights and humanitarian
law are vested with the States. Under the ambit of humanitarian law, states
are mandated to enact penal legislation and also assist the dissemination of
546

the law itself. Under human rights law, states are bound to implement
international human rights law through the domain of their national law. The
implementation system for International Humanitarian Law is principally the
International Committee of the Red Cross, which is given a rather important
role in ensuring that humanitarian issues are given the respect they deserve.
In addition, the law itself provides for several mechanisms that assist the
process of implementation. For human rights, however, implementation
mechanisms are more complex and also include regional systems within
their fold. There are UN based supervisory bodies, such as the UN
Commission on Human Rights, and plenty of sub-commissions, along with
Special Rapporteurs who function in tandem to address human rights issues
at different levels.
The points of convergence, however, find manifestation in the prohibition on
the derogation from certain basic rights, such as, for example, the
prohibition on inflicting torture and indulgence in summary executions, is a
provision present in both, human rights law and in humanitarian law.
Protection under International Humanitarian Law
International humanitarian law primarily extends to a very broad spectrum
of individuals, and accords different levels of protection for each.
However, to get a generic understanding of the scope and ambit of the
protection that it offers, it is important to note that a very basic distinction is
drawn between actual combatants involved in actual hostilities, and those
who are not actively involved in hostilities in any form. The Conventions,
as explained by common Article 2, shall apply to all cases of declared war
or of any other armed conflict which may arise between two or more of the
High Contracting Parties even if the state of war is not recognized by them
and to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed
resistance.
There is no right to renounce the rules mentioned under the convention, if
one seeks to derive benefits under it. This is essentially important
considering that an authority supervising a population cannot try to side-step
the protection that individuals are entitled to under the convention.[1798]
For a generic understanding, a birds eye view of the protections accorded
by each convention would be a sufficient primer to a specific analysis. The
First Geneva Convention protects the wounded and the sick in the armed
forces on land. The Second Geneva Convention protects the wounded, sick
and shipwrecked among armed forces at sea. The Third Geneva Convention
protects prisoners of war, and the Fourth Geneva Convention protects
547

civilians. The First Additional Protocol strengthens the protection of

victims of international armed conflicts, and the Second Additional Protocol
strengthens the protection of victims of non-international armed conflicts.
The First Geneva Convention
The First Convention, or the Geneva Convention on the Amelioration of the
Condition of the Wounded in Armies in the Field, essentially defines the
basis on which the rest of the rules of international law for the protection of
the victims of armed conflicts, are built.[1799] First adopted in 1864, the
Convention was modified and updated in 1906, 1929 and in 1949. The
Convention is also intricately linked with the International Committee of the
Red Cross, which functions as the instigator for the inception, and
enforcement of the Geneva Conventions. Back when it was formed first, it
was also the most basic convention, deriving its binding force from the
implicit consent of the states that accepted and applied the provisions of the
Convention in their military operations.[1800]
The First Geneva Convention covers the rules pertaining to the Wounded
and Sick on Land. As under Article 13, it primarily focuses on the fact that
all members of armed forces and organized militias, inclusive of all
personnel accompanying them as and where authorized, to be respected and
protected in all circumstances. As a rule, all such wounded and sick on
Land are to be given humane treatment by the party to the armed conflict on
whose territory they are found. There should be no discrimination in treating
such wounded and sick, and the rules also mandate that all attempts on the
lives of such people, or any violence directed at such people are both
strictly prohibited. Torture and all forms of biological experimentation is
forbidden, and on no account are such wounded and sick people to be left
bereft of medical assistance and care, as explained by Article 12. Article 12
is virtually the keystone of the entire convention, and defines the principle
from which other provisions of the treaty are derived.[1801] All individuals
of a belligerent, being wounded or sick, falling into the hands of the enemy
need to be treated as prisoners of war, as per Article 14. Article 15
mandates that the parties to a conflict shall take all the necessary measures
possible to protect the wounded and sick, and to ensure that they are given
adequate care, and to search for the dead and to prevent corpses of such
individuals from being despoiled. Article 16 of the Convention requires that
the parties to the conflict record all the details, as soon as it is found to be
possible, of the wounded, sick and dead persons of the opponent or
adversary state, and then to send these details to the other side, by following
specific means. This is also mentioned under Article 122 of the Third
548

Geneva Convention. The First Convention also deals with medical units and
establishments, specifically mentioning that they should not be subject to any
attack, as explained under Article 19. This protection extends to them even
if such personnel of the unit or establishment are armed, or protected
otherwise, as under Article 22. Article 9 of the Convention allows the
International Red Cross, or any other impartial humanitarian organization to
provide protection and relief of wounded and sick soldiers, and also for
medical and religious personnel. Chapter IV of the First Convention
specifically pertains to the treatment of medical personnel.
The Second Geneva Convention
The Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of the Armed Forces at Sea, or the Second Geneva
Convention, pertains to the Condition of the Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea. For the most part, it is
similar to the First Convention, in that it notes that members of armed forces
and organized militias, including all those accompanying them, wherever
duly authorized, those who are sick, wounded or shipwrecked, should be
treated humanely and cared for on a non-discriminatory basis. The
Convention also prohibits any attempts upon their lives and the use of
violence and torture.
Primarily comprising 63 articles, the Convention is an adaptation of the
main provisions of the First Geneva Convention to combats at sea. Articles
12 and 18 essentially mandate that all parties are obligated to protect and
care for the wounded, sick and shipwrecked. Article 21 permits appeals to
be made to any neutral vessels, in order to help collect and care for the
wounded, sick and shipwrecked, and also notes that the neutral vessels
cannot be captured. Article 14 notes that although a warship itself cannot
capture a hospital ships medical staff, it can hold the wounded, sick and
shipwrecked people as prisoners of war. Article 22 states that hospital
ships cannot be put to use for any form of military activities, or for the
pursuit of any military purpose. Further, owing to their humanitarian
mission, they cannot be captured or attacked. Articles 36 and 37 offer
protection to the religious and medical personnel that serve on a combat
ship.
The Third Geneva Convention
The Third Geneva Convention, or the Convention on the Treatment of
Prisoners of War, 1949, deals with prisoners of war and comprises a
comprehensive code built upon the fundamental obligation to mete out
humane treatment in all circumstances. Article 4 defines prisoners of war,
549

and is a rather important provision, and has been deemed a provision that
elaborates upon the combatant status. Through its purport and ambit, the
provision covers members of the armed forces that are party to a conflict,
members of militias and other volunteer corps forming a part of an armed
force, and members of any other militias and volunteer corps, inclusive of
all those belonging to organized resistance movements. However, such
individuals are included in the definition only in the event that they fulfill
the conditions it lays down, which are that the individuals should
necessarily:[1802]
(a) Be commanded by a person responsible for his subordinates;
(b) Have a fixed distinctive sign recognizable at a distance;
(c) Carry arms openly;
(d) Conduct operations in accordance with the laws and customs of
war.
Article 4 has been a product of many lessons learned during the Second
World War. Originally, however, the compliance with the four conditions
reduced the reach and scope of the term and did not include guerillas.
However, the spread of the guerillas in the decolonization era showed the
demanding necessity that even they be brought within the scope of the
definition, which was then done by Articles 43 and 44 of Additional
Protocol I of 1977. These armed forces are deemed to comprise all
organized armed units under the control of an effective command structure,
which enforces compliance with the rules of international law that apply to
an armed conflict. As per Article 44 of the Additional Protocol I of 1977,
combatants should distinguish themselves from the civilian populace when
they are in engaged in an attack, or in a military operation that is a
preparatory preface to an attack. If he is not able to distinguish himself thus,
the combatant status may be retained if he carries arms openly during each
military engagement, and during such time as the combatant is visible to the
adversary while being engaged in a military deployment that precedes the
launching of an attack.
There is no certainty in the status of a person, all the time, and Article 5
provides the cushion to the blow of a doubt in status. It notes that where
there is a doubt as to the status of a person who commits a belligerent act,
and falls into the enemys hands, such person shall enjoy the protection of
the present Convention until such time as their status has been determined by
a competent tribunal. Additional Protocol I modified the ambit of this
provision through Article 45, noting that a person who takes part in
hostilities and falls into the power of an adverse party shall be presumed to
550

be a prisoner of war and therefore shall be protected by the Third

Convention. In essence, therefore, anyone failing the tests laid down under
Articles 43 and 44 of Additional Protocol I will be an unlawful combatant,
and will not be entitled to avail the protection and status of prisoner of war
under international humanitarian law. He will, however, remain a civilian,
entitled to the basic humanitarian guarantees as mentioned under Articles 45
and 75 of the First Additional Protocol and the rights guaranteed under
international humanitarian law. Nevertheless, there would be no benefits
flowing from the protection afforded to the status of a prisoner of war,
which makes such individuals liable for prosecution under normal criminal
laws.[1803]
The scope of the law containing the obligations of protecting prisoners of
war is built upon the foundations of the notion that they are human beings
too, and must be kept in good health, and must be kept alive.[1804] As per
article 13 of the convention, prisoners of war ought to be meted out humane
treatment, and must be accorded protection at all times, and must be
protected from violence and intimidation, insults and public curiosity. By
this provision, any mechanism of deploying the media as a tool to display
prisoners in a manner unbefitting their dignity, or in a humiliating fashion
that derogates from the upkeep of their protection, is outlawed and
prohibited. Furthermore, there cannot be a deployment of reprisals against
prisoners of war. At all times, prisoners of war are entitled to respect for
their persons and their honour, and neither can be violated, as per Article
14.
Prisoners of war, while being interrogated, are necessarily bound to divulge
only their name, date of birth, rank and serial number maintained by them
while in a position of authority. Beyond this, no information needs to be
divulged, and no prisoner of war is under an obligation to offer up
additional information. Article 17 prohibits the use of physical and mental
torture and all forms of coercion in order to secure information from
prisoners of war, in any kind, whatsoever. It also asserts that those prisoners
of war who refuse to answer questions are not to be threatened, insulted or
exposed to any unpleasant or disadvantageous treatment of any sort. Once
they are captured, Article 19 mandates that prisoners of war are necessarily
to be evacuated as soon as possible to camps located in an area sufficiently
far from the combat zone, so as to ensure that they are out of danger. Article
23 states that no prisoner of war may at any time be sent to, or detained in,
areas where he may be exposed to the fire of the combat zone, nor may his
presence be used to render certain points or areas immune from military
operations. Article 82 of the Convention notes that Prisoners of War are
551

subject to the law and order of the state that detains them, and may therefore
be punished or penalized for disciplinary offences, and may be tried for
offences committed by them before their capture. Article 85 adds to this and
indicates that they may be tried for offences committed before capture,
committed against the law of the state that detains them. The convention also
provides necessary rules to govern the medical treatment, religious
activities, discipline and labour of the prisoners of war. As per Article 118,
prisoners of war are to be released and repatriated without delay after
hostilities cease. The convention also provides for situations such as the
death of a prisoner of war, the release and repatriation of prisoners of war
at the close of hostilities and the question of direct repatriation and
accommodation in neutral countries.
The Fourth Geneva Convention
The Fourth Geneva Convention, or the Convention relative to the Protection
of Civilian Persons in Time of War, was adopted in 1949, and outlines a set
of rules concerning humanitarian protection for civilians in a war zone, and
also outlaws the practice of a total war. It is an improvement over Hague
Convention IV on the Law and Customs of War on Land, 1907. By Article 4,
the convention limits its application to those people, who, at a given
moment and in any manner whatsoever, find themselves, in case of a conflict
or occupation, in the hands of a party to the conflict or occupying power of
which they are not nationals. The Convention, as Article 6 explains, comes
into operation immediately following the outbreak of hostilities, or at the
start of occupation, and comes to an end when military operations are
closed.
The Convention fundamentally protects civilians, a term which is defined
under Article 50(1) of the First Additional Protocol of 1977, as any person
who is not a combatant, also including anyone whose status is in doubt. The
Convention installs a rather well developed set of rules towards the
protection of such civilians. By the convention and the provisions offered
under it, civilians are accorded the right to respect of person, honour,
convictions and religious practices, the prohibition of torture and all forms
of cruel, degrading and inhuman treatment, taking of hostages and conduct of
reprisals, and right to judicial guarantees such as the right to due process.
[1805] Part III of the Convention deals with the status and treatment of
protected persons. Article 32 states that a protected person shall not have
anything done to them, of such a character so as to cause physical suffering
or extermination, and the prohibition extends to murder, torture, corporal
punishment, mutilation and medical or scientific experiments not mandated
552

for medical reasons. By Article 33, no protected person may be punished

for an offence that he or she has not personally committed, and therefore, all
forms of collective penalties, intimidation of and pursuit of terrorism,
reprisals and intimidation are prohibited. Article 47 prohibits the
deprivation of benefits conferred upon civilians by the convention, by way
of a change introduced consequent to occupation or by agreement between
the occupied and the occupier, or by annexation of the territory so occupied.
Article 49 imposes a prohibition on transfers and deportation of people,
irrespective of what the motive itself is. Article 51 imposes a prohibition on
forced work or conscription of protected persons, while Article 53 deals
with the prohibition of the destruction of real or personal property except
where rendered absolutely necessary by military operations. Article 54
prohibits any alteration of the status of public or judicial officials. By
articles 55, 56, 59 and 60, the occupying power has to ensure that there are
adequate food and medical supplies, and in the absence of the necessary
supplies, it has to embark upon relief schemes. By Article 70, no protected
person shall be arrested, prosecuted or convicted for acts committed, or
opinions expressed prior to the occupation. However, there is no bar on
prosecution or arrest or conviction for breaches of the laws of war.
While these protections are accorded to all those civilians in occupied
territories, the meaning and ambit of the term occupied territory is quite
ambiguous. Looking at Article 42 of the Hague Regulations, the statutory
material in pari materia relevant to the Fourth Convention, it is clear that a
territory is considered to be occupied when it is actually placed under the
authority of the hostile army, and that such occupation only extends to the
territory where such authority has been established and can be exercised.
This provision has attained the status of customary international law.[1806]
By the decision of the International Court Justice in the Democratic
Republic of Congo v. Uganda,[1807] it is now a rule that to determine
whether a state whose forces are present on the territory of another state is
an occupying power or otherwise, it is necessary to examine whether there
is sufficient evidence to demonstrate that the authority itself was
established, and subject to exercise by the intervening state in the fields
involved. In that specific case, the court related this test to the issue, and
concluded that the Ugandan forces in Congo were stationed in particular
regions, where they had virtually substituted the Congolese government in
terms of exercise of authority.
When enemy territory is subjected to occupation bearing military overtones,
it is a case of belligerent occupation. When belligerent occupation comes
553

into existence, there are a set of principles and provisions that determine the
legal relationship of both entities, the occupier and the occupied territory.
For occupation to take on a belligerent sense, it is necessary that the
erstwhile government of the occupied territory is in no position to continue
publicly exercise its authority and that the power occupying such territory is
in a position to take the place of the former government and exert authority.
This marks the existence of the occupation, which is said to continue in
entirety, terminating only when the occupying power is forced to leave the
territory and does so, or, if it leaves the territory by itself.[1808] The Fourth
Convention is built on the framework provided by the Hague Regulations,
which states that the authority of the legitimate power having in fact passed
into the hands of the occupant, the latter shall take all the measures in his
power to restore and ensure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the
country. Some of the basic aspects one must note, through this definitive
outline, is that only authority passes, and not sovereign power, from the
erstwhile government of the occupied territory to the occupier.[1809]
Consequently, therefore, the basis of the authority of the occupier flows
from the effective control of the region, causing the occupier to do the
needful to maintain public order in the region. This cannot be done without
preserving the laws in the form in which they subsist, and therefore, the
occupier must do all within its capacity to ensure that all the laws of the
territory are preserved.
The Protocols
Though the main instruments have been the Geneva Conventions of 1949,
and that the treaties offer protection to a wide range of individuals, under
different circumstances, there were also plenty of loopholes and gaps in
different areas, most specifically those pertaining to the conduct of
combatants and the protection of civilians from the effects of hostilities. In a
bid to overcome these shortcomings, the Additional Protocols of 1977 were
adopted. These protocols supplement the Geneva Conventions, but do not
replace them. Protocol I is the Protocol additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts. Protocol II is the Protocol additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts.
Protocol I applies to international armed conflicts. It essentially imposes
constraints upon the manner in which military operations and activities may
be conducted. The protocol lays down certain obligations, but there is no
554

imposition of any restriction upon the right of each state to defend itself by
taking to any legitimate means of action. The Protocol was essentially
established since there were several newer mechanisms for states to follow
while indulging in combat, and the Geneva Conventions were not quite able
to handle these means as they were not contemplated at the time of their
creation. In effect, therefore, they were rendered outdated. Protocol I, since
its framing, has been a means that safeguards the right of the state to choose
the means and methods of warfare, but has also noted that these means are
not unlimited in that by Article 35, states are prohibited from employing
weapons, projectiles and such other weapons and tactics that would result
in superfluous injury or any unnecessary suffering. By Article 1, the
Protocol extends the Geneva Conventions definition of international armed
conflict, and includes within the umbrella term, wars of national liberation.
In addition, it also specifies the factors that go into determining what
amounts to a legitimate target of a military attack. Indiscriminate attacks,
attacks proper and reprisals directed against civilian population (Article
48), individual civilians (Article 51), civilian objects (Articles 48 and 52),
cultural objects and places of worship (Article 53), objects indispensable
to the survival of the civilian population (Article 54), the natural
environment (Article 55), works and installations containing dangerous
forces (Article 56), are all prohibited. The Protocol also extends the
protection afforded under the Geneva Conventions, to medical personnel,
units and means of transport, both civilian and military, under Articles 8 to
31. It also mandates the search for missing persons under Article 83, and
offers provisions pertaining to relief for the civilian population under
Articles 68 to 71. The Protocol also offers protection to the activities of
civil defense organizations, through Articles 61 to 67. In addition, through
Article 90, an International Fact-Finding Commission is established, in a
bid to investigate and inquire into any alleged instances of grave breaches
and serious violations of the Geneva Conventions and the Protocol itself.
Protocol II deals with non-international armed conflicts. After the Second
World War, there were no instances of warfare at the same scale, level and
magnitude. All skirmishes and wars were essentially non-international.
However, the Geneva Conventions, save for common Article 3, did not
apply to these kinds of conflicts. Though Article 3 essentially outlines the
basic principles on which the protection of people during wartime are built,
and though it applied even to non-international conflicts, it was hardly
sufficient to solve some of the more serious humanitarian considerations
emanating from internal conflicts. Protocol II was accordingly installed, in a
bid to ensure that there is a law in place to deal with internal conflicts.
555

While dealing with these aspects, however, the Protocol does not restrict
the rights of the state itself to act in accordance with the means available to
it, to restore law and order, and does not justify any means of foreign
intervention, as explained by Article 3. Protocol II explains the area of
operation it is concerned with, and explicitly excludes low-intensity internal
conflict such as riots and internal tensions. Protocol II extends to situations
that occur on the territorial confines of a state, between the armed forces of
the state itself, and rebel armed forces that hold responsibility for the
command and control of part of the national territory. Article 4 of the
Protocol suggests that the fundamental guarantees enjoyed by all persons
who are not, or are no longer participating in the hostilities, shall be
strengthened. Articles 5 and 6 lay down the rights of persons who are
deprived of their freedom and provide all the necessary judicial guarantees
for those people who are prosecuted in connection with an armed conflict.
The Protocol protects the wounded, sick and shipwrecked under Article 7.
Religious personnel and all medical personnel, along with their units and
means of transport are accorded protection under Articles 9 to 11. Attacks
on civilian populace and individual civilians (Article 13), on objects
indispensable to the survival of civilian population (Article 14), on works
and installations containing dangerous forces (Article 15) and cultural
objects and places of worship (Article 16) are prohibited. The Protocol
also regulates the forced movement of civilians under Article 17.
Both Protocols are binding on several states, and are often deemed
necessary to be recognized in keeping with the need for the fulfillment of the
obligations owed to the international community in times of conflict.
However, it is only when all the states pledge their allegiance and offer to
comply with the rules laid down in the Protocols, will it be actually a real
practical possibility to ensure that there is equal protection for all the
victims of an armed conflict.
The 1954 Convention on the Protection of Cultural Property in the Event
of Armed Conflict
In the event of armed conflicts and military operations, there have been
plenty of instances involving the destruction of cultural property of states,
and very evidently, such destruction is irreversible, and the damaged
property isnt always capable of being salvaged, much less preserved in its
original form. This is not just a loss to the country of origin, but also an
irreparable form of damage to the people, and their cultural heritage. In
keeping with this, the 1954 Convention on the Protection of Cultural
Property in the Event of Armed Conflict was adopted, along with a Protocol
556

pertaining to the protection of cultural property during the time of

occupation of the territory, in 1954. A second protocol was adopted in a bid
to add strength to the implementation of the Convention and the First
Protocol, in 1999. The Convention under Article 1, defines cultural property
as being any movable or immovable property of great importance to the
cultural heritage of all people, such as monuments of architecture or history,
archaeological sites, works of art, books or any building whose main and
effective purpose is to contain and house cultural property. The Convention
also accords a symbol, by which cultural property is to be identified, as
explained by Articles 16 and 17. It mandates that all states that are party to
the Convention ought to protect all their cultural property, whether their
own, or those situated in the territory of other State Parties. The Convention
mandates General Protection, Special Protection and Enhanced Protection.
General Protection warrants, as Article 3 puts it, that state parties are to
safeguard their own cultural property against the foreseeable effects of an
armed conflict. It is also necessary that states refrain from using cultural
property for any purpose likely to expose it to destruction or damage in the
event of armed conflict. Article 4 mandates a state not to direct any act of
hostility against cultural property. However, the exception to the rule, as
outlined under Article 4, is that the obligation to respect all cultural
property may be waived on the basis of imperative military necessity, and
this waiver can be invoked either when there is no other feasible alternative
but to use the cultural property for purposes that are likely to endanger it, to
gain such a military advantage, or to attack such property when such
property has been, by function, made into a military objective and there is
no other feasible alternative available to obtain a similar military
advantage, and for such circumstances, effective advance warning must be
given with all circumstances permitting (Article 6). The Convention, under
Article 7, requires that parties to a conflict must do everything feasible to
protect cultural property, including refraining from an attack that may cause
incidental damage. Article 8 requires that the parties to the convention must
to the maximum extent possible, either move cultural property away from
military objectives, or, should avoid placing military objectives near such
property. Article 5 speaks of occupied territory, and mandates that states
occupying foreign territory ought to preserve cultural property in that region.
The Convention provides a scheme of special protection. However it did
not prove to be successful in assisting the protection of cultural property in
the face of armed conflicts, and hence, in 1999, a system of enhanced
protection was provided. The scheme of enhanced protection was
introduced with the help of the 1999 Protocol. Article 10 lays down the
557

criteria based on which cultural property is granted enhanced protection- it

needs to be cultural heritage of the greatest importance to humanity; it is to
be protected by domestic measures that recognize its cultural and historical
value and ensure the highest level of protection and it is not used for
military purposes, or to shield any military sites, and the State that has
control over the property has formally declared that it will not deploy such
property for such use. Once determined as befitting enhanced protection,
cultural property that is given such protection is placed under the Committee
for the Protection of Cultural Property in the Event of Armed Conflict, and
is placed on the List of Cultural Property under Enhanced Protection.
Following this, all states holding property included on the list, are under an
obligation not to use such property or its immediate surroundings in support
of military action, and this obligation is without exception, as explained
under Article 12. By the same Article, states are also under an obligation to
refrain from attacking any property on the list, and the only exception is that
an attack may be embarked upon should there be any military objective
attached to the property, and if an attack is the only feasible means of
terminating the use of the cultural property for military objectives, and if
sufficient precautions are taken to minimize the damage to the property, as
explained under Article 13.
Parties to the Convention are also under an obligation to take all the
necessary measures to ensure that sanctions are imposed upon all those who
violate its provisions, as under Article 28. Article 15 requires states to
make provision under their domestic laws, to outlaw the making of cultural
property under enhanced protection the object of attack, the using of cultural
property under enhanced protection or its immediate surroundings in support
of military action, the extensive destruction or appropriation of protected
cultural property, the making of a projected cultural property the object of
attack and the theft, pillage or misappropriation of, or acts of vandalism
directed against protected cultural property.
The 1972 Convention on the Prohibition of Bacteriological Weapons
and their Destruction
The Convention came into existence in pursuit of securing effective progress
in disarmament. The underlying goal of the Convention was the elimination
of all weapons of mass destruction, of bacteriological nature, including
toxins and biological agents deployed as weapons. The use of
bacteriological weapons was already outlawed previously by the 1925
Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous
or Other Gases, and of Bacteriological Methods of Warfare. The 1972
558

Convention is a complementary instrument, and seeks to prohibit the

development, production, stockpiling, acquisition, retention and transfer of
bacteriological weapons, and also requiring their destruction. Article VIII
of the Convention affirms the complementary status of both instruments vis-vis one another. The convention, however, does not explicitly prohibit the
use of bacteriological weapons, but the Review Conference held after the
Convention came into existence noted that a use of such weaponry would be
tantamount to a violation of the objectives of the Convention. By Article I,
each state party to the convention undertakes that never in any circumstance
would they develop, produce, stockpile or otherwise acquire or retain any
microbial or other biological agents or toxins whatever their method of
origin or production, of types and quantities that have no justification for
prophylactic, protective or other peaceful means; and, weapons, equipment
or means of delivery designed to use such agents or toxins for hostile
purposes or in armed conflict. Article II indicates that each state party
undertakes to destroy, or to divert to peaceful purposes, all agents, toxins,
weapons, equipment and means of delivery which are in its possession or
under its jurisdiction or control. By Article III, each state party also
undertakes not to transfer, to any recipient whatsoever, directly or indirectly,
and not to assist, encourage or induce any State, group of States or
international organization to manufacture or otherwise acquire any of the
agents, toxins, weapons, equipment or means of delivery. Article IV
requires states to take necessary measures to prohibit and prevent the
development, production, stockpiling, acquisition or retention of agents,
toxins, weapons, equipment and means of delivery within its territory, under
its jurisdiction or control, anywhere. Article V mandates state parties to
engage in consultations and cooperation, and also embark upon scientific
exchange.
As per Article VI, any State Party to the Convention which finds that another
state is in breach of the obligations under this convention, may file or lodge
a complaint with the UN Security Council. Article VII notes that each state
undertakes to provide necessary assistance to any Party which so requests
for such assistance, if the UN Security Council decides that such a party has
been exposed to danger consequent to the violation of the Convention.
1976 Convention on the Prohibition of Military or any Hostile Use of
Environmental Modification Techniques
The ENMOD Convention, as it is famously known, is essentially an
international instrument devoted to disarmament, seeking to protect the
environment in the event of an armed conflict. The convention prohibits the
559

deliberate manipulation of natural processes that could result in natural

disasters and climate change. By Article 1(1), states that are privy to the
convention are not to engage in any military or other hostile use of
environmental modification techniques that have widespread, long-lasting
or severe effects as the means of destruction, damage or injury to any other
state that is party to the convention. Clause 2 of the same convention notes
that states undertake not to assist, encourage or induce any State, group of
States or international organization to indulge in such activities. The
convention, under Article II, defines environmental modification techniques
as being those that are intended to change, through the deliberate
manipulation of natural processes, the dynamics, composition or structure of
the Earth. For a technique to be prohibited and banned by Article I, it is
necessary that the use be for hostile purposes, causes destruction, damage or
injury to another State Party, and has widespread, long-lasting and severe
effects. Through a series of understandings, which is not officially part of
the ENMOD convention, there has been a definition of the criteria necessary
as a precondition for the convention to apply. The extent is defined as
widespread, in that it should be encompassing an area of several hundred
square kilometers, the duration as long-lasting, in that it should last for a
period of six months or approximately a season, and the magnitude as
severe, in that it should involve serious or significant disruption or harm to
human life, natural and economic resources or other assets.
The 1980 Convention on Certain Conventional
Weapons
The Convention essentially seeks to protect civilians from the consequences
of using weapons in an armed conflict, and also seeks to protect combatants
from suffering in excess of the extent necessary to achieve a legitimate
military objective. The convention is not parochial in its considerations, and
can easily be expanded to include newer weapons and modifications in the
modus operandi relating to warfare. The Convention also contains five
protocols, three of which were adopted in the inception of the convention
itself, one in 1995 and one in 2003. The Convention applies two rules of
customary international humanitarian law, noting that it shall impose the
prohibition on the use of weapons that are indiscriminate in nature, and that
it shall impose the prohibition on the use of weapons of a nature to cause
unnecessary suffering or superfluous injury. The First Protocol prohibits the
use of any weapon that has the primary effect of injuring by fragments that
are not detectable in the human body by way of X-rays. The second Protocol
prohibits and restricts the use of anti-personnel and anti-vehicle landmines,
booby traps and other explosive devices. Protocol III prohibits the use of
560

incendiary weapons, i.e., those weapons that are primarily designed to set
fire to objects to burn persons through the action of flame or heat, such as
napalm or flame throwers. Protocol IV addresses blinding laser weapons,
and all laser weapons that are specifically designed to cause permanent
blindness, and also prohibits the transfer of such weapons to any State or
non-State entities. Protocol V deals with explosive remnants of war, and
requires all parties to a conflict to take measures to reduce the dangers
posed by the explosive remnants of war.
The 1993 Chemical Weapons
Convention
The Convention on the Prohibition of the Development, Production,
Stockpiling and the Use of Chemical Weapons and on their Destruction, or
the 1993 Chemical Weapons Convention, deals with the prohibition of
chemical and bacteriological methods of warfare that were oftentimes
deemed destructive to the interests of humanity. Following the First World
War, plenty of instances showing the use of chemical and bacteriological
methods of warfare were found, and these methods, by and large, were
denounced as prohibited by the 1925 Geneva Protocol, and widely
condemned in state practice. This convention, in effect, reinforced a very
basic tenet of the law pertaining to conduct in armed hostilities, where the
right of the parties to an armed conflict to choose a means or method of
warfare is not unlimited. The Convention mandates that state parties
undertake never to develop, produce, acquire, stockpile, retain or transfer
chemical weapons, use chemical weapons, engage in any military
preparations to use chemical weapons, assist, encourage, induce or in any
way, anyone to engage in any activity that is prohibited under the
Convention. Riot-control agents are also prohibited as a method of warfare,
and each state party is mandated to destroy chemical weapons or any
chemical weapon production facilities that it owns or possesses, all the
chemical weapons that are abandoned by it in the territory of another State
party. For the purposes of the convention, chemical weapons include toxic
chemicals including reactants that take part in their production, munitions
and devices designed to cause death or other harm by the release of toxic
chemicals and any equipment specifically designed for use directly, or in
connection with these munitions and devices. The Convention also
establishes the Organization for the Prohibition of Chemical Weapons,
which functions to carry out verification measures and to offer technical
assistance to the State parties that implement the provisions of the
Convention.
561

The 1997 Convention on the Prohibition of Anti-Personnel Mines and

on their Destruction
The Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their Destruction, also called the
Ottawa Treaty, functions as the international legal regime to address
widespread suffering consequent to the use and deployment of antipersonnel mines. The Convention codifies customary international law, and
essentially prohibits the use of weapons which by their very inherent nature,
do not discriminate between civilians and combatants, or which cause
unnecessary suffering or superfluous injury. Anti-personnel mines are
incapable of distinguishing between soldiers and civilians, and therefore
kill or maim or mutate severely, the victims indiscriminately. They are also
particularly difficult to remove, and wreak untold havoc on civilian
population. States are mandated, to never, under any circumstances, use,
develop, produce, stockpile or transfer anti-personnel mines, or even help
anyone else to do so. States are also under an obligation to destroy antipersonnel mines, whether in stockpiles or on the ground, within a stipulated
fixed time-span. However, the convention allows a small number of these
mines to be retained for the sake of developing clearance and destruction
techniques and training people in the use of these techniques.
Implementing Humanitarian Law
No treaty, convention or protocol holds any value if it is not to be given
effect in practice, through effective implementation and enforcement. The
states privy to the 1949 Geneva Conventions and the Protocols of 1977, by
their signature to the entire system, undertake that they shall respect, and
ensure respect for the instruments, and shall also do all that they can in their
capacity to disseminate knowledge of the principles contained within these
conventions and protocols.[1810] The conventions and protocols are not
without their own brand of enforcement measures. The concept of Protecting
Power is one of the means, where a protecting power is appointed to look
after the interests of nationals of one party to a conflict under the control of
the other, either as prisoners of war or as occupied civilians.
[1811]Although this seems a pragmatic scheme of events, there is a major
drawback, in that the mechanism depends largely upon the consent offered
by the parties in conflict. If a state refuses, there is absolutely no room for
this method to operate. There are plenty of examples of this kind, as was
seen in the case of China, which refused to consent to the appointment of a
Protecting Power in relation to its conflict with India in 1962. In 1971, India
refused the appointment of a Protecting Power for the conflict it had with
562

Pakistan, in connection with its prisoners of war that it had under its charge.
Another known and accepted method is that of enquiries and fact-finding.
Protocol I of 1977 establishes an International Fact-Finding Commission for
the conduct of inquiry into grave breaches. Articles 50, 51, 130 and 147 of
the each of the four Geneva Conventions, respectively, deal with the
creation of the commission. The commission seeks to restore an attitude of
respect for the system. By Articles 52, 53, 132 and 149 of the four 1949
Conventions respectively, the states that are party to the Conventions are
also free to establish an ad hoc inquiry into the alleged violations of the
conventions that mention humanitarian law.
Aside of this the commission of offences during wartime amount to the
commission of war crimes, or crimes against humanity. These offences can
be prosecuted by states by relying upon the auspices of universal
jurisdiction. This would involve the attraction of individual criminal
responsibility.
Additional attention to humanitarian law to see to it that it is implemented,
has been given by the International Committee of the Red Cross, which is an
entity comprising as many as 100 societies functioning in a league that
coordinate their activities. The Red Cross has functioned with a rather
wide-ranging reach, working to assist humanity recover from the difficult
after effects of war and natural calamities. The Red Cross functions to
repatriate assistance to victims of internal and international armed conflicts.
Some of the most noteworthy contributions include the Nigerian civil War in
1948, the Yugoslav situation in 1992 and in plenty of instances in
Afghanistan, Iraq, Rwanda, Somalia and Sri Lanka.

Chapter 23- Peaceful Settlement of Disputes

When there are several units constituting a community of sorts, whether
with, or without a leader to oversee the relations between the units, there is
definitely bound to be conflict of some kind or the other, consequent to
friction, ideology and perhaps, varying degrees of progress of each unit.
This scheme of affairs is a rather integral aspect of international relations,
in that several states indulge in actions and policies that may give rise to
differences that may sometimes take on the colour of disputes. Dispute
settlement, in this background, assumes particular importance in the level
563

playing field of international relations, considering that it is extremely

necessary to ensure the maintenance of peace and security. Given that
several ideals of international law rest upon the strong pre-conditional
pillars of peace and security, it is absolutely essential that dispute settlement
machinery be installed in place, sufficient to avert a chaotic situation in
international relations.
The idea of peaceful settlement of disputes goes back a very long way, into
the erstwhile era of the classical period, where though there was no
prohibition on the use of force, the actors in international law understood
the importance of maintaining peace in international relations. In the present
context, the UN Charter, under Article 2(3) encourages members to resort to
the settlement of their disputes by accessing peaceful means, in a manner
befitting the upkeep of international peace and security, without endangering
justice in any manner. While the provision is clear on the purpose of settling
disputes, there hasnt been much in concrete terms to understand and define
the scope of international disputes, consequent to which there hasnt quite
been an agreement in place to lay down the meaning of the term itself.[1812]
One of the basic purposes of the UN is, as explained under Article 1(1), to
bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace. In
pursuance of this purpose, the UN Charter itself outlines Chapter VI, a
segment architected to suit the goal of maintenance of peace and security.
However, the chapter is limited in its scope and covers only certain kinds of
disputes, essentially being those that the continuance of which is likely to
endanger the maintenance of international peace and security.[1813]
Article 33 of the UN Charter mentions the basic methods that a state may
resort to in the event that it wishes to settle disputes peacefully. These
include the processes of negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements
or other peaceful modes as they may choose.[1814] A cursory glance at the
provision indicate that the modes of dispute settlement include a wide range
of both, legal and diplomatic means of dispute settlement, and offers the
states a choice to avail the auspices of an international organization in
assisting the process of settling their disputes. The process of negotiation,
mediation, inquiry and conciliation rely on a diplomatic channel, where
there is no legal angle to the dispute settlement process. The process of
negotiation involves only the parties to the dispute, and does not involve the
intervention of a third party to assist the settlement of the dispute. The use of
mediation, inquiry and conciliation as a mode of dispute settlement also
564

requires the intervention by a non-partisan third party, as a means to allow

the dispute to be settled peacefully. The consequent outcome of these modes
does not possess any form of legally binding effects, and therefore, will
have to be adhered to only in keeping with the ideals of respect and
friendship. The other modes of dispute settlement, namely, arbitration and
judicial settlement refer to methods that involve the hand of law,
consequently leading to a legally binding outcome. The settlement of
disputes generally follows a path, where states try their best to nip enmity in
the bud by relying on the time tested methods of diplomatic settlement. In the
event that this fails, and there is no end in sight to the dispute itself, states
turn to seek recourse under the rubric of the law, and rely on legal means. In
addition, there are plenty of multilateral treaties and agreements that have
assisted in bringing states together in a bid to unite them in peaceful
settlements, whenever quarrels arise.[1815] The earliest of these
multilateral treaties goes back to 1899, when the Hague Convention for the
Pacific Settlement of International Disputes was adopted, followed by a
revision in 1907. Both conventions had about eighty-odd states as its
members by 1966.[1816] In 1928, the General Act for the Pacific Settlement
of Disputes,[1817] was brought to fore by the League of Nations and its
members. However, it was accepted only by twenty-three states,
subsequently denounced by Spain in 1939, by France, the United Kingdom
and India in 1974 and Turkey in 1978. Following this, the Second World
War broke out, and the United Nations came into existence. In 1949, a
modified version of this Act was approved with a minor revision, but in
practice, only seven states adhered to it. While this exists on the global
scenario, there were plenty of instruments that were drafted at the regional
level. Starting out as early as in 1948, the Bogota Pact or the American
Treaty on Pacific Settlement,[1818] came into existence, followed by the
1957 European Convention for the Peaceful Settlement of Disputes,[1819]
the 1964 Protocol of the Commission of Mediation and Arbitration of the
Organization African Unity,[1820] the 1992 Convention on Conciliation and
Arbitration Convention within the CSCE,[1821] and the 1993 Organization
for African Unity Mechanism for Conflict Prevention, Management and
Resolution.[1822] Aside of the network of multilateral agreements, there
are also several bilateral agreements binding states in a bid to ensure that
disputes between them, if any, are settled in keeping with amity and the
obligation of maintaining peace and security. Most of these bilateral
attempts to settle disputes may be treaties installed to such effect, or may
also be treaties governing other matters, while necessarily keeping with the
need to settle disputes through a clause introduced in the treaty.
565

The very basis on which the mandatory requirements of tending towards

peace and security in settlement of disputes are that there is a need to keep a
war-like chaotic situation at bay. An exhibited proclivity towards peace in
settling disputes will keep states in check, from resorting to an unacceptable
campaign of using force to force its demands on another state, or to foist
responsibility on another state so as to seek recompense. If instead of
resorting to peaceful methods of dispute settlement, states were free to use
any tactics to seek redress, we could be looking at a situation characteristic
of a banana republic, with the law conspicuous by its very absence.
Although initially there was hesitation on the part of the states themselves,
to come down from the high tower of sovereignty, by offering to submit to an
authority to settle disputes, which in effect, would have to be a supervening
authority for the duration till the settlement is arrived at. This was
specifically predominant amongst the developing countries. Following the
close of the Second World War, it was believed that disputes of minor
scales and magnitudes, and those pertaining to technical issues were far
more capable of being left to dispute settlement, in keeping with the notions
of sovereignty and independence of states. At that juncture, since states
wished to maintain their own stronghold in international relations, holding
onto their status and power as sovereign countries in the wake of the end of
war and the rapidly progressing scheme of decolonization, there were few
states that accepted the adjudication of legal disputes and arbitration of nonlegal disputes, as was followed in Europe and America. Consequently, any
regional arrangements made in pursuance of settling disputes with peace and
security as the basic tenets governing the process had no teeth and were
weak for a long time, until they finally failed altogether.
When these institutions failed, states realized the importance of letting even
dispute settlement hinge on the fulcrum of peace, there was a concerted
move made to arrive at a universally acceptable and feasible solution. With
these measures becoming more prominent in state ideologies, many states in
the international community began to see reason in allowing a third party to
mediate their disputes in order to arrive at settlements. Particularly laudable
in this regard, are the stream of efforts siphoned by the United Nations
system, in requiring states to remain true to the supreme values of
maintaining peace and security, by allowing their disputes to be settled
peacefully. This in turn led to the creation of plenty of machinery in
international law, to settle disputes between states in keeping with the core
values of peace and security. However, even though these lofty ideals
gained personification to such extent, the mere fact that states would take to
the method of dispute settlement offered under international law did not
566

automatically imply that there would indeed be a peaceful settlement,

because there is no effective method of enforcement in international law, to
give effect to the judgments and decisions passed by international courts and
tribunals. This happens to be one of the distinguishing factors between
international law and municipal law, since the latter has a scheme of
enforcement mechanisms for the decisions passed under the auspices of its
judicial set up.
To the present day, however, the use of courts and tribunals in order to settle
disputes under international law has not dwindled despite the conspicuous
lack of machinery to enforce the decisions so passed in adjudication.
However, there is also a parallel system prevalent in the form of diplomatic
settlement, arbitration and negotiation, which parties are bound by in
keeping with the fundamental norms of peace and security.
Understanding the scope and ambit of the term Disputes
Disputes are a rather important aspect of any relationship, be it
interpersonal or international. A dispute is essentially a disagreement,
relating to any issue, where, in effect one side lays a claim, or asserts a fact,
and the other denies the claim, or opposes the claim or assertion with a
counter of its own, which in effect is diametrically opposed to the original
claim or assertion so made. Putting this in perspective with international
relations, a dispute is said to occur when the aforementioned scheme of
events are found to unfold in the course of the relations of the subjects of
international law. However, although individuals and non-state actors are
subjects of international law in terms of a theoretical analysis, the dynamics
of international law relating to dispute settlement concern itself only with
states, and international organizations to some extent.
No two states follow the same political ideology, and no two states support
the same political perspective. These reasons, coupled with historical
factors to a large extent, function as major factors in causing disputes
between states in international law. Disputes are invariably inevitable,
especially seeing as massive developments in the legal realm have
emanated from the conduct of disputes, in different scales and magnitudes.
The World Wars installed in place the system of peace and security as the
basis upon which the edifice of international relations is built, while the
Cold War brought to fore some of the worlds strongest regional alliances.
Consequently, therefore, the occurrence of disputes is integral to the
operation of international relations, as it provides the much needed friction
in order to foster development and burgeoning of inter-relationships at the
international level. However, there has to be a limit on the quantum of these
567

disputes, as a transgression of limits could cause a catastrophe not less than

the Second World War in terms of magnitude, and this is precisely where
settlement procedures come into play.
Diplomatic Methods of Settlement of
Disputes
Diplomatic methods of dispute settlement refers to the vesting of reliance on
diplomatic channels, by deploying the diplomatic personnel to mediate and
settle the difference of opinion between the concerned states, before it
burgeons into a bigger schism of sorts. The general array of methods
available for a state seeking recourse to diplomatic channels and methods of
dispute settlement include negotiations, mediation and good offices,
conciliation, fact-finding missions and inquiries. The crux of the logic
behind using diplomatic methods of dispute settlement essentially is that the
parties to the dispute remain in control, as matters remain in the hands of the
parties. The fact that the parties seek to settle their differences between
themselves and do not need the assistance of a third party in the process,
warrants the degree of control enjoyed by the states themselves in settling
their differences. This is the basic difference between diplomatic methods
and legal methods of dispute settlement, considering that the latter involves
a third party that adjudicates upon the differences, and therefore, the parties
themselves do not enjoy autonomy or control over matters.
Negotiation
Negotiation refers to the dialogue between two or more entities that are
embroiled in a disagreement, in a bid to arrive at an understanding, or a
compromise, or in a bid to resolve any points of difference. The process
essentially involves both sides seeking to gain an advantage over the other,
but finally arriving at a compromise, if the outcome of the negotiation is
successful.
In international relations, negotiation is oftentimes conducted through the
foreign offices of the states involved, or through the diplomatic
representatives of the states concerned. Plenty of states settle their
differences through the channel of direct diplomatic negotiations.[1823]
Sometimes, if the dispute involves a spectrum of subjects, there may be
delegations comprising representatives of different departments of the
government, or there may be a panel of experts joining the diplomatic
representative, to carry out the process of negotiations. At other times, even
members of the ministries or governments themselves may participate in the
process and seek to arrive at a conclusion.
States are under an obligation to enter into negotiations under Article 2(3)
568

of the UN Charter, which is also augmented by the 1970 Friendly Relations

Declaration which allows the states to rely on any such means as are found
to be appropriate in keeping with the circumstances and the nature of the
dispute concerned. It is not enough that states resort to negotiation as a
means to settle their disputes- they are also under an obligation to conduct
themselves in a manner that ensures that the process of negotiation are
meaningful and successful.[1824]
In terms of actual practice, every party to a dispute that resorts to
negotiation ideally aims for a win-win situation that allows room for both
sides. Towards this end, therefore, both entities must be ready and willing to
arrive at a satisfactory conclusion for both sides, and this can only be
facilitated in the event that both sides to the dispute are willing to
compromise. The compromise itself may be an orchestrated one, where the
parties to the dispute may think of the grounds they are willing to relinquish.
One of the most commonly suggested remedies for the India-Pakistan
dispute relating to Kashmir, is the ideal of compromise. Although the actual
outcome will depend largely upon the states themselves, it is necessary that
the states think up of possibilities for a compromise, rather than to allow the
dispute to hang in the air.
Negotiation as a method of dispute resolution, although a rather simple and
peaceful mechanism involving the deployment of intellect and the acumen of
a skilled diplomat in order to present the case of his country, is not favoured
too largely in international relations. The absence of neutral third parties
suggests that there may not be impartial elements to champion the dispute
and coax it to come to a compromised conclusion, and consequently, there
are large possibilities of extreme claims and demands being made by one or
both states, based on their relative bargaining power and standing in the
international community. Furthermore, it is also possible that states demand
the fulfillment of certain pre-conditions, only after which it shall enter into
negotiations. There is also a possibility of a cache of demands being
imposed by one state upon another, and the dispute itself would find no
solution, dragging on, instead, for several years together.
One of the biggest hindrances to the use of negotiation as a mode of dispute
settlement is the fact that some states in dispute with one another may be in a
spot where one does not recognize the other. This has most commonly been
the case with the Arab World and their status with respect to Israel, where
for a considerably long time, the non recognition of Israel by the Arab
states, and Israels non recognition of the Palestine Liberation Organization
had been a massive obstacle to the actual conduct of direct negotiations to
569

resolve differences. This is predominantly because the question of nonrecognition itself was a substantive aspect of the dispute, in that the very
existence of Israel for the Arab world, and of Palestine for Israel, was not
accepted. Although a majority of these instances could be solved by
pointing out that both sets of states are members of the United Nations and
thereby should recognize each other as states, it represents a very gray area.
Logically speaking, since states undertake to enter into relations on a
multilateral level with other states, it makes sense to expect recognition for
all other members from the international community. Nevertheless, given
that recognition is a heavily loaded question involving political and legal
overtones, it is a decision best left to the state to make, after weighing all
the necessary factors that influence their political decision-making.
Negotiation as a method will be rendered horribly toothless if the states
engaging in the process do not have a common ground with overlapping
interests to hold them together. Disputes involving some very substantial
questions of law may have two sides professing some very diverse claims.
On the one hand, there is the strong state with claims founded in very strong
legal grounds which would lay claims relying on the law, and on the other,
there is a weaker state that lacks support in the law, so would plausibly rely
on another means of arriving at a settlement. This could prove to be a spoke
in the wheel of arriving at an agreement binding the states, leave alone
allow room for negotiation. There is also the questionable aspect of
negotiation in that it encourages the continuous looping of talks, a stage that
at most times, is found not to be crossed. Bouts of talks about talks, rounds
of negotiations to initiate actual negotiations and plenty of rhetoric being
deployed towards arranging a means to get to a settlement are only the tip of
the iceberg of the trouble that negotiation can bring in, if states are found to
have no willingness to yield a little to attain that compromise. This was
clearly the case with the United Kingdom, which was particularly hesitant to
bring in the question of sovereignty on the list of issues to be discussed with
Spain, in pertinence to Gibraltar. The entire scheme of things suggested that
the United Kingdom was hardly willing to yield on the question of legal title
to the said territorial expanse. The relations between states are exceedingly
dynamic, and what is possible one day may become completely impossible
the next. This almost automatically makes negotiations difficult by a degree,
especially seeing as how it has precious little to offer until the dispute itself
reaches a stage where it is ripe for a settlement.
As a procedure, negotiation does not come with any guarantees. A lot
depends on the states themselves. If both states agree to negotiate, there isnt
much of a problem. If another method of dispute settlement is agreed to, but
570

one state seeks to resort to negotiation out of the blue, there could be another
factor functioning as the bone of contention between the states, because such
state is actually breaching the obligations it has and owes under the
agreement. The Cod War, between Iceland and the United Kingdom, is the
best example of this sort of a consequence. Iceland had refuted a provision
that suggested judicial dispute settlement in their treaty with the UK.[1825]
Nevertheless, negotiation is, oftentimes, the method of first resort for the
settlement of disputes. There are several treaties that suggest the mechanism
in its dispute resolution clauses, while also offering several alternatives
should it be found bearing no acceptable results. Most dispute settlement
provisions, in bilateral and multilateral agreements alike, if at all they do
refer to negotiation, offer it up as only a precursor to the actual mode of
dispute settlement, and often times seek recourse to other forms of dispute
resolution. This is not to suggest that negotiation is hardly any use, but rather
to understand that the functioning of the international community owing to
the proclivity for dynamism make more demands than negotiation can
handle.
Good Offices and Mediation
It is not always possible for states themselves to settle their disputes, by
resorting to negotiation or a one-on-one discussion. The need to pursue their
own interests tends to prejudice their perceptions and in the process, makes
the arrival at an impartial settlement a very difficult prospect. At times like
these, the intervention of a third party, an impartial entity coloured purely by
non-partisan considerations, is an extremely useful tool towards settling the
dispute. The states that are at loggerheads can be allowed to meander from
the deadlock, and instead, arrive at an acceptable solution. This is possible
through two means. Good offices being one such means, allows the
intervening third party to function anywhere from being a source of moral
support by egging the states to negotiate their differences, to actively being a
channel of communication. This involves an exceptionally passive
participation, only being assertive in that the states must arrive at a
settlement. When the intervening entity takes a more active part in the
process, by suggesting new ideas, allowing a compromise to burgeon by
guiding it into place, by offering its own solutions and also functioning as a
go-between for communiqu between the disputing states, it becomes
Mediation.[1826]
The basic difference between Good Offices and Mediation lies entirely in
the extent of involvement of the third party. The former involves a case of
decidedly passive involvement, not transcending beyond being a
571

motivational coach that merely seeks to egg the parties onto arriving at a
settlement by remaining steadfast in their negotiations and discussions with
one another. Mediation is easily much more active, involving an assertiveaggressive participation of the third state, by offering viable options for
arriving at the settlement, and then coaching the states towards arriving at
the most viable of them all. For the process of mediation, it is absolutely
necessary that the intervening third-state enjoys the confidence of the
disputing states, for without the trust, it would be impossible to arrive at a
solution. It is necessary for both states to believe and accept the mediator,
and his non-partisan involvement in allowing both to arrive at a solution that
suits both states without compromising too much on one state and allowing
another state to gain additionally. Unless the states accept the mediator, they
will not be able to arrive at a settlement. In the Beagle Channel Award,
[1827] the drive to arrive at a settlement encouraged Argentina and Chile to
accept their mediator, Cardinal Antonio Samor, upon the Popes proposal.
State practice has shown instances of good offices and mediation being
combined, sometimes in a manner that is indistinguishable in action. The
classic example is Algerias role in the 1980 dispute pertaining to the
diplomatic hostages, between the United States and Iran. In a situation
where both states were hostile to one another, Algeria functioned as an
intermediary, and encouraged the settlement of the dispute, by assisting the
signing of the Algeria Accords, which ultimately culminated in the
establishment of the Iran-US Claims Tribunal, and then a subsequent
engagement of both states towards the settlement of the dispute.[1828]
While consent is not a mandatory precondition for the commencement of
mediation, it is necessary in order for the process to be effective. The basis
of mediation is entirely the agreement between the states themselves, which
is also the manner on which the procedural conduct of the mediation process
is based. This makes the process considerably flexible, and pliant enough
for the parties involved to be able to work with comfort. The involvement
of a mediator is essentially proactive, which means there is an option
available to him to channelize the process by constructing useful
communications, offering settlement alternatives, explaining the various
angles to different options, and even, sometimes, offer financial assistance
towards assisting the performance of the finally agreed solution. In the
1950-1960 dispute between India and Pakistan with reference to the
territorial rights over the Indus River and its cache of tributaries, the World
Bank played the role of a mediator, and also siphoned funds to enable the
performance of the settlement that both the states arrived at.
572

Time and again, in international relations, mediation has shown the way
towards retaining peace, and averting war. The 1878 Berlin Congress is
noteworthy of the German endeavour as a mediator. In 1966, the USSR had
a massive role to play in peacefully settling the differences between India
and Pakistan. In 1975, Algeria intervened between Iran and Iraq, a time
when the tension was mounting. The state managed to assist the resolution of
a crisis which, left unresolved, could have burgeoned into a terrible war.
The latter part of the 1970s was also a hallmark year for mediation, where
the United States had intervened in the Arab-Israeli conflict, a move that
resulted in the 1978 Camp David Peace Negotiations, held between Israel
and Egypt. The break-up of Yugoslavia between 1991 and 1995 had resulted
in plenty of differences, which drew different states and units such as the
European Community and the United Nations, to play mediator. Of course,
in most instances, the lure towards functioning as a mediator hinged largely
on fears for a possible case of regional instability and the general need to
preserve peace, security and safeguard humanitarian considerations.
However, there are also the goals of protecting vested interests- and
sometimes augmenting them- that propel a state to don the robes of a
mediator, as was the case with Algeria and its role in the Iran-Iraq issue in
1975. By its intervention, Algeria was able to improve its image and
influence in the Islamic world, and even managed to retain the unity of the
OPEC, where Algeria was a major stakeholder in its capacity as an oil
exporter.[1829]
All said and done, however, Mediation as a method of dispute settlement is
hardly as easy as it sounds. It is not impossible for the relations between
either state party to the dispute and the mediator state to go sour, and it is not
impossible for the mediation itself to fail altogether because of the lack of
powerful influence of the mediator on the states involved. It is easier for a
state that is inherently powerful to manage to sway the parties involved, in
the mediation, and to achieve fruitful results, but in such cases, it is rather
necessary to be wary of the possible pursuit of vested interests that may not
be good for the world at large. There is also the problem of unwilling
mediators, since several conflicts do arise where no state wishes to take up
the role of a mediator. The other side of the coin also shows the converse to
be true, whereby fewer states are willing to accept the superiority of
another state sufficient to settle their disputes.
As a more practically acceptable solution, Mediation is far more relevant in
a situation where the dispute has brought the parties to a stage where they
need to take stock of their policies and strategies, and alter them, should
they be convinced to do so. It is easily the better mode of settlement when
573

the states have understood the futility in continuing their dispute, and have
also conducted an inventory of costs they may have to incur in keeping the
dispute afloat and in settling it, concluding that the latter is a cheaper option.
When Iran and Iraq were embroiled in a dispute, Iraq was decidedly
antagonistic to the Kurdish population. Iran had the option of either allowing
the war with Iraq to mount higher by supporting the Kurds, or to pull the
plug on its support for the Kurds, in exchange for the Iraqi recognition of the
Iranian boundary claims. Iraq presented a picture that the Kurds were a
more important issue as opposed to the territorial quotient, and with the
setting rounding in on one issue, the process of mediation became more
pragmatic, with a fact-finding mission from the UN making its way
following an Egyptian initiative, and a subsequent Algerian mediatory
intervention.
By and large, mediation is a significant mode of dispute settlement in
situations where the dispute involves smaller issues, or bigger issues where
the states have agreed to allow a mediation to champion a settlement
befitting the larger scheme of affairs. Once again, it all boils down to what
the parties involved wish to make of the differences they share with one
another, and with the process of mediation. It is not a mean task to intervene
between two states that are at loggerheads, and one need not even begin to
evaluate the costs involved- in terms of time, energy, money and effort- to
understand that state cooperation underlies the entire procedure. Without
cooperation, an intervening state cannot achieve anything, much less
succeed in settling the dispute itself.
Fact Finding and Inquiry
Fact-finding fundamentally denotes the determination of facts in a dispute,
bereft of any partisan considerations that may colour the rendition of the
facts by either side to the dispute. It is, in many ways, a precursor to
ascertaining a settlement between the parties. An inquiry refers to a part of
the process, which involves talking to those involved and investigating the
events that transpired ultimately culminating in a conflict. Primarily
established during the 1907 Hague Convention, fact-finding was first
deployed in the context of the international commissions of inquiry. Factfinding and inquiry function in conjunction as methods that enable the
ascertainment of facts in international law.[1830] The facts so gathered are
capable of use for the settlement of disputes and decision making.[1831]
The very purpose of fact-finding is to ascertain a completely untainted
narration of events exactly as they happened. The idea is to be able to
present a set of facts that do not allow one state to colour the others role in
574

a manner that benefits it, or in a manner that puts the other in a more
unacceptable position. The reason why so much emphasis is laid upon factfinding is that there should be an avoidance of disputes of facts, which,
statistically speaking, constitute a greater part of the disputes in the
international community. Therefore, reliance is vested upon an impartial
inquiry, in a bid to quell tensions and uncertainties. Disputing states may
choose to appoint an impartial tribunal themselves, or, may also refer to a
permanent body or a similar authority, to carry out an inquiry and prepare a
report. There is no compulsion for the states to accept the inquiry and its
outcome, but practice reveals that the proclivity to accept is the general
trend.
While finding the facts itself forms the core of the functions of a fact-finding
body, there is also a possibility that some states may seek a legal evaluation,
so that a series of recommendations towards arriving at a settlement is also
made available. This tends to blur the lines differentiating conciliation,
mediation and fact-finding. The best case in point is the Dogger Bank
Incident.[1832] The Russian Baltic fleet, in 1904, while travelling to the
Pacific to wage a war with Japan, had fired upon a few fishing vessels
belonging to the UK, that were operating around the Dogger Bank in the
North Sea. The basis, it submitted, was that the attack was consequent to
having been provoked by Japanese submarines. To ascertain facts, an
inquiry commission was constituted, comprising senior naval officers from
the UK, Russia, the United States, France and Austria. They were required
not only to put down facts, but also to prepare a list of findings on who was
responsible, and the extent of fault they had on their side. The outcome of the
report turned Britain into withdrawing its insistence on punishment of the
Russian Admiral, while Russia paid a compensatory amount.
A 1991 Declaration by the United Nations General Assembly on Fact the
Declaration on Fact-finding by the United Nations in the Field of the
Maintenance of International Peace and Security emphasized as its
objectives that the ability of the United Nations to maintain international
peace and security depends to a large extent on its acquiring detailed
knowledge about the factual circumstances of any dispute or situation, and
to encourage States to bear in mind the role that competent organs of the
United Nations can play in ascertaining the facts in relation to disputes or
situations. True to its objectives, the United Nations has established a whole
range of fact-finding authorities for investigations into violations of human
rights and humanitarian law, crimes of aggression, genocide, war crimes
and crimes against humanity. Aside of these, the 1977 Additional Protocol I
575

to the 1949 Geneva Conventions and the UNCLOS 1982 suggest the reliance
on fact-finding and inquiry.
Although largely favoured, the role of fact-finding has not been very
significant in dispute settlement. Restricted to specific areas such as
maritime affairs in state practice, fact-finding has produced few successful
results. Fact-finding in the context of dispute settlement differs from factfinding missions, which are established even outside a dispute.
Conciliation
Conciliation as a process of dispute resolution refers to the impartial
assessment of the dispute by an impartial entity, who then suggests a
settlement that that parties are most likely to accept. The states that are party
to the dispute agree to deploy the services of a conciliator, who then takes
the initiative to settle the dispute. Conciliation is a form of mediation,
except that there is an institutional angle, and a more formalistic legal
approach to the settlement process.
The concept has been defined as being a method for the settlement of
international disputes of any nature according to which a Commission set up
by the Parties, either on a permanent basis or an ad hoc basis to deal with a
dispute, proceeds to the impartial examination of the dispute and attempts to
define the terms of a settlement susceptible of being accepted by them or of
affording the Parties, with a view to its settlement, such aid as they may
have requested.[1833] States may also choose a course of action that allows
the appointment of a sole conciliator.
Conciliation as a mode of dispute settlement evolved with the practice
established by the 1913 Bryan Treaties, which sought to settle disputes
between states by doing away with the honour and vital interest clauses that
coloured dispute settlement in earlier treaties, and instead, ushered in the
inclusion of the sensitive concerns of the states, while allowing the
decisions so passed to be non-binding.[1834] The first treaty that provided
for conciliation officially was the 1920 treaty between Sweden and Chile.
Though the treaty fundamentally emphasized on inquiry, conciliation was
mentioned as an optional mode of dispute settlement. In 1921, Germany and
Switzerland entered into an Arbitration Treaty, which suggested that
arbitration and conciliation were alternative modes of dispute resolution
between the states in the event that a dispute arose. The treaty noted that a
Permanent Board of Conciliation would be given the responsibility of
investigating the factual circumstances, and the law, and then accordingly to
prepare alternatives for a solution. Following this, in 1922, the League of
Nations, through its Assembly, adopted a resolution recommending that
576

member states should seek to conclude agreements between themselves to

the effect that they should submit their disputes to conciliation. There was a
favourable response, with at least twenty treaties coming up, marking that
the states were committed to settling their disputes through conciliatory
channels. Nevertheless, the outbreak of the Second World War proved that
these efforts were hardly successful. Later, in 1925, a treaty was entered
into by France and Switzerland, and then four bilateral treaties between
Germany on the one hand, and Belgium, France, Czechoslovakia and Poland
each on the other hand, prepared a model of sorts, based on which several
bilateral general arbitration and conciliation treaties were made later. The
treaties generally suggested that there should be a combination of voluntary
and compulsory conciliation, preceding the process of arbitration or
adjudication for all forms of legal disputes. Some of these treaties carry
specific mention of compulsory conciliation. When the Second World War
broke out, conciliation was hardly relied upon, especially seeing as how
states began redressing their grievances by retaliating with the use of force.
However, the practice managed to resurface through a series of multilateral
and bilateral treaties, a practice which has remained till present day as a
routine process.
Conciliation requires the intervention of a third party between disputing
states, but, there is neither room nor permission for third parties to act on
their own and take an initiative to function as conciliators. As a rule,
conciliators may be appointed in keeping with their official position, status
and functions, either as the head of a state, or as the UN Secretary General,
or any diplomatic office, or sometimes, even in their personal capacity
independent of the office they hold. Usually, commissions are established,
whereby the states that are party to the dispute themselves nominate a few of
their own nationals. Following this, so as to prevent a prejudice-induced
deadlock, the two states work out a specified number of impartial third
states, and put down their nationals in a list, thereby creating room for a
neutral majority. In many ways, the procedure followed in conciliation
makes it a combined culmination of inquiry and mediation, because the
conciliator is obligated to investigate the factual aspects, and then suggest a
settlement. However, conciliation does not enjoy the degree of informality
that mediation has, especially since a conciliator cannot go beyond issuing a
single report, while a mediator has the privilege of issuing several
alternatives for the resolution of the dispute. The findings of the conciliator
do not bind the parties, although parties are inclined to adhere to the more
practical aspects out of courtesy.
The proceedings of conciliation are generally confidential. Most times,
577

procedures are not confined into a rigid mandate, allowing the parties to the
dispute to enjoy ample flexibility and ease of procedure. When the
proposals are made, it is up to the parties to accept or reject them. If the
proposals are accepted, following a specified period offered for
consideration, the conciliatory commission prepares a proces-verbal, which
enumerates facts, suggestions and the agreed terms.[1835] If the proposals
are not accepted, there is nothing more that needs to be done.
Conciliation is not without its own cache of advantages and disadvantages.
The major benefits of the process include the flexibility and the
voluntariness attached to its conduct, to such extent that the states are free to
accept or reject solutions. However, the disadvantage also remains in the
very same factors. Overt flexibility allows the disputing parties to enjoy a
long rope. The astute lack of a binding nature renders the friendly and
peaceful process absolutely toothless. States generally rely on conciliation
when the dispute is a smaller one, and do not get down into accepting the
solution unless it comprises a compromise that keeps both states on an equal
footing. Nevertheless, conciliation itself is generally looked upon as
providing an environment most friendly to the interests of the states in
settling their dispute. The UN Draft Rules on Conciliation of Disputes
between States of 1990, and the CSCE Convention on Conciliation and
Arbitration of 1992 were drafted only in keeping with this mindset.
The failures of conciliation in handling issues of heavy magnitude, such as
armed conflict and war, were most evident in the case of former Yugoslavia.
This has more to do with the proclivity to raise some heavily nationalistic
and parochial considerations than with the fact that conciliation itself is
inherently defective. Some of the more famous instances of conciliation
being deployed in state practice go back to 1977 where Kenya, Uganda and
Tanzania, after being persuaded by the World Bank, had sought out Dr.
Umbricht, a Swiss diplomat, to function as their conciliator and then make
proposals towards the settlement of their dispute,[1836] and later, the
appointment of the President of the IMF when there was a complicated issue
pertaining to the grant of a pre-war loan to Japan also became a subject for
conciliation.
Legal Methods of Dispute Settlement
Diplomatic settlement refers to the channel of dispute resolution that does
not have a binding outcome. It is a more altruistic choice of dispute
resolution in the event where the dispute itself is one that is capable of
seeing a solution only through persuasive means, where the parties
concerned are willing and able to accept a solution and perform it out of
578

good faith. However, where these disputes do not see a fruitful resolution,
or, where the dispute itself is such that a settlement using diplomatic
channels is not possible, reliance is shifted onto the legal channels of
dispute settlement, namely arbitration and judicial adjudication. Arbitration
is a flexible mode of dispute settlement, and virtually is conciliation with a
greater degree of legal value, and adjudication refers to the settlement of a
dispute by a court of law, which is generally the more rigid and stricter
process.
Arbitration
Arbitration refers to the settlement mechanism that requires the intervention
of a third party between the disputing entities, where the states involved set
up their own vehicle to enable the arrival at a settlement. The process has
legal recognition, and the outcome is generally binding upon the parties
involved. Arbitration was essentially the first form of the dispute redress
mechanisms to have developed.
The generally accepted practice involves states setting up a commission
comprising an equal number of national arbitrators appointed by each side,
and then the selection of a neutral member who usually works as an umpire.
The procedure itself is largely much more flexible and easier in comparison
with adjudication. The key to arbitration is the ensured right of party
autonomy, in that the states that are party to the dispute have all the right to
determine the number of arbitrators, the arbitrators themselves, the law
applicable, the place of arbitration and also the procedure to be followed in
conducting the arbitration itself. This is done through a compromis or an
agreement otherwise recognized as the terms of reference. The idea of
adhering to arbitration can be compared to being bound by a treaty, which
the parties follow in keeping with the norms of pacta sunt servanda. While
today, states are free to determine who their arbitrators should be, back in
the nineteenth century, it was generally a case of arbitrators being appointed
by the parties as official representatives of the states itself. Past practice
reveals that arbitration as a mode of dispute settlement has been very useful
as a mode of dispute settlement. There have been plenty of cases that have
been settled in the course of international relations through seeking recourse
to arbitration.[1837] The beginnings of arbitration as a means of dispute
resolution started in 1794, with the United States and the United Kingdom
signing the Jay Treaty by which the states resorted to arbitration to settle
their differences, thereby having a resounding number of 536 arbitral
awards, all passed between 1799 and 1804. [1838] These decisions seem to
have been the foundation stone for several arbitral decisions passed since.
579

The next development in arbitration as a means of dispute settlement was

the creation of the Permanent Court of Arbitration, which was established in
1899 by the Hague Convention for the Pacific Settlement of International
Disputes.[1839] The Permanent Court handled about twenty arbitrations
until 1932, following which the adjudicatory means of dispute settlement in
the Permanent Court of International Justice and then subsequently the
International Court of Justice took precedence. Nevertheless, following the
world war, it has had a rise in the membership and a small number of
arbitrations being conducted under its authority. Under the auspices of the
Permanent Court of Arbitration, the states that are party to the court are
permitted to nominate four people to serve on a panel of arbitrators. From
this pool, the states that are party to the dispute are allowed to select the
arbitrators they prefer, to settle their dispute. The Permanent Court of
Arbitration has facilitated the establishment of several other arbitration
bodies, of which the most prominent has been the Iran-US Claims Tribunal
at The Hague. Arbitration has become notably important in the field of
commercial dispute settlement consequent to which plenty of changes have
been introduced in the rules and regulations of the Permanent Court. Some
of these changes have included room for non-state entities to seek the courts
assistance in dispute settlement.
Although more arbitration proceedings seem to be occurring in the context
of commercial disputes, many states, specifically while looking at bilateral
and multilateral treaties, seek to include a clause that suggests that
arbitration will be the preferred mode of dispute settlement.[1840] There is
also a trend suggesting that even treaties codified under the UN have
allowed room for arbitration clauses. This is particularly significant of the
fact that some of the decisions of the International Court of Justice have
been hindered by the reservations that states factor into their declarations
accepting the courts jurisdiction. It is also indicative of the fact that
adjudication is generally less accepted, and states themselves are in a
position where they prefer relying on arbitration instead of adjudication,
where they will have to give up some of their sovereignty in favour of being
subjugated by a court.
But this is not to suggest that arbitration has no disadvantages. Certain kinds
of disputes, particularly political and diplomatic problems, simply cannot
be arbitrated, considering their political significance. Similarly, there are
plenty of very minor disputes that can be solved far more easily with
negotiation and mediation, and an arbitration procedure would virtually be a
case of unnecessary expenditure. There is also the question of too much
party autonomy colouring the proceedings. Arbitration is most often
580

confined to settling economic issues and disputes of a commercial or

contractual nature.
Adjudication
Adjudication refers to the settlement of disputes by a court of law. The
process typically involves the expounding of the law in relation with the
factual circumstances backing the dispute, whereby the outcome determines
a course of action that actually binds the parties to the dispute. Adjudication
as a means of dispute settlement in international relations is more or less a
last resort, considering the fact that it is both, long-drawn and complex as a
procedure. Where the international community is concerned, the leading
apparatus governing the process of adjudication is the International Court of
Justice. In addition, there are also other organs such as the International
Criminal Court, which deals with international criminal responsibility, the
International Tribunal for the Law of Sea which is established under the
1982 UNCLOS, the International Criminal Tribunal for former Yugoslavia
and the International Criminal Tribunal for Rwanda.
Of these, the International Court of Justice is the only one that is concerned
with the adjudication of differences between states. The ICJ and its
predecessor, the Permanent Court of International Justice, have functioned
as the quintessential world court, since it caters to settling disputes in the
international realm where the world community is arranged in an anarchical
set up. The predecessor organ, the Permanent Court of International Justice,
was a product of the League of Nations endeavour to arrange for a means to
encourage states to settle their differences. The statute creating the PCIJ
came into force in 1921, having been signed a year earlier. The panel of
judges officiating in the forum was appointed by the League of Nations. The
court was then dissolved when the League of Nations was dissolved, at the
start of the Second World War. Nevertheless, with the creation of the United
Nations, the International Court of Justice took over. Although it was never
pronounced officially as its successor, the ICJ functioned in a manner that
suggested there was the maintenance of the continuity of the judicial action
wielded by the PCIJ, in that the cases brought before the PCIJ under the
treaties that were still in force between parties to the ICJ would be taken
before the ICJ.[1841]
The International Court of Justice is situated at the Peace Palace, in The
Hague, Netherlands. It functions with the status as one among the six
principal organs of the UN, although it is also given a special status as an
independent judicial wing that is not slotted within the confines of a
hegemonic structure with respect to the UN and the other five organs.[1842]
581

The creation of the International Court of Justice was consequent to the

passage of a statute, called the Statute of the International Court of Justice,
1945. The statute itself largely resembles the Statute that created the PCIJ.
The statute is an annexure to the UN Charter, thereby making all members of
the UN parties to the court.[1843] This does not mean that non members of
the UN will be deprived of the opportunity to access the court, because as
per Article 93(2) of the Statute of the ICJ, states may elect to become
parties of the ICJ.[1844] Initially, Switzerland, Japan, Liechtenstein, San
Marino and Nauru were members of the Court, but not members of the UN.
Later, all the states became members of the United Nations.
The ICJ comprises 15 judges, five of whom are elected every three years to
hold office for nine years. The election procedure requires the elected
judges to receive an absolute majority of votes in the Security Council and
the General Assembly, independent of each other. As a rule, the judges must
each be of a different nationality, while representing the principal legal
systems of the world. The most recent form of practice, however, has
suggested that four judges come from West European States, one from the
United States, two from South American states, two from East European
States and six from Africa and Asia. Of the fifteen judges, as a rule, the five
permanent members of the Security Council are to be represented. While
there is no singular qualification for the judges, it is necessary that they be
deemed qualified enough to be able to hold the highest judicial office in
their respective states, or, must actually be jurists of recognized competence
under International Law. These judges, upon their appointment, are required
to function independently as magistrates, and not as representatives of their
states. In addition, there is also room for ad hoc judges, in that they can be
appointed if a state appearing before the Court does not have a judge of its
own nationality, in order to adjudge a particular case. The purpose behind
this is to safeguard the interests of the states, in that their interests will
definitely be taken into consideration while the decision is being made.
As for the duties of the Court, its responsibilities primarily relate to the
settlement of disputes submitted to it by states themselves, in keeping with
international law. Secondly, the ICJ is also given the responsibility of
offering advisory opinions on legal questions that are referred to it by
international organs and agencies that are duly authorized to do so. The
jurisdictional ambit of the court, therefore, extends to contentious cases and
advisory cases.
Contentious Jurisdiction
Contentious jurisdiction, as the name suggests, is the power of the court to
582

adjudicate upon an actual dispute that forms the bone of contention between
the states concerned. Consequently, therefore, only states may be parties to
contentious proceedings before the Court.[1845] However, this provision
has come under the scanner plenty of times, especially seeing as how the
scope and ambit of international law has broadened enough to include
plenty of other entities within the ranks of its subjects. The contentious
jurisdiction of the court can only be exercised if states consent to it. This
provision was engineered by the spearheading of the more powerful states
at the 1945 San Francisco Conference, while dismissing the contentions of
some of the smaller states who sought to have compulsory jurisdiction.
Understandably, the raison dtre surrounding the scheme of things lies
predominantly in the fact that the states wished to preserve their anarchical
arrangement. Having a court vested with compulsory jurisdictional powers
would only mean that they, as individual units comprising the international
community, would be bound to sacrifice a portion of their sovereign power.
This was hardly acceptable if the states wished to remain sovereign, yet
equal units, if at all at least in theory. Therefore, the provision stands till
date, under Article 36(1), to grant the Court jurisdiction in all cases which
the parties refer to it, and all matters that are specially provided for in the
UN Charter, or in treaties and conventions in force.
In order for a dispute to be referred, it is essential that the states that are
party to the dispute must agree to refer the matter to the Court. Usually, this
is done through a special agreement concluded by the states in conjunction
with one another, although there is no ruling out the possibility that a party to
the dispute may seek to make a separate reference at a separate time. The
state party thereby making a reference will be an applicant. The other state,
or the respondent state, may accept the courts jurisdiction following the
institution of proceedings against it. This acceptance is either explicit in that
it is stated in writing, or implicit in that the respondent state does not
question the jurisdiction of the court, and goes ahead to defend the case on
merits.[1846] Many a time, states tend to decide well in advance, through
the channel of an actual agreement, as to the jurisdictional scope that they
wish to confer upon the court in the event that a dispute arises between
them. Useful reference may be had to the massive network of treaties that
speak of jurisdictional clauses which suggest approaching the court for its
breach, or interpretational differences.[1847] The consent factor can be
rather restrictive. In the East Timor Case,[1848] it came to light that the
results of the straitjacket principles of consent were rather unsatisfactory.
The case primarily concerned Portugal and East Timor, but Indonesia was
an occupying power of East Timor. Nevertheless, the court did not comment
583

on the lawfulness or lack thereof with respect to Indonesia, since it had not
consented to the courts jurisdiction.
Article 36 of the Statute of the ICJ also has two other clauses. Clause 2
suggests that the states party to the Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes. Clause 3 states that the declarations so
referred in the aforementioned provision may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or certain
states, or for a certain time period. These are optional clauses, which
essentially came to be as a consequence of a compromise being arrived at
between the two factions, one being those championing the cause of
compulsory jurisdiction and the other being those that denounced it.[1849]
Those states that accept the Courts jurisdiction under the optional clause
will in effect do so as mentioned under paragraph 2, in relation to any other
state accepting the same obligation. This is the foundation stone of the basis
on which international relations is built, and is effectively called the
principle of reciprocity.[1850] Clause 3 allows room for the inclusion of
reservations to reciprocity and time. Reservations of other kinds are not
sidelined, as state practice itself suggests that they have been made and
accepted. The most commonly found reservations are those made in pursuit
of the need to withdraw their acceptance without notice. Sometimes, states
may not make their reservations to this effect, but will still be allowed to
take back their acceptance of the courts jurisdictional prowess if they
afford reasonable notice to the other side.[1851] When a state withdraws its
acceptance, it effectively prevents the Court from trying any future cases
against it, but does not deprive the Court of jurisdiction over all the cases
that have already commenced against the state.[1852] An example of this is
the American reservation to the Genocide Convention, when it became a
party to the convention in 1986. The reservation was specifically slotted to
Article IX of the Convention, and suggested that before any dispute to which
the United States is a party may be submitted to the jurisdiction of the
International Court of Justice under this article, the specific consent of the
United States is required in each case.[1853]
Aside of these instances, states have also been known to make reservations
to keep disputes that fall exclusively within the domain of their domestic
jurisdiction outside the ambit of the ICJs jurisdiction. This is usually done
when the states perceive certain disputes as coming within the confines of
their domestic jurisdiction in keeping with the fact that such issues may
584

affect their key interests.[1854] Such kinds of reservations are called

automatic reservations, since the state seeking to make such reservations are
allowed to do so unilaterally. As to the validity of these reservations, there
is still room for debate.[1855] Other reservations include the process of
excluding any given category or categories of disputes, following an
issuance of a notification to the UN Secretary General.[1856]
Aside of this question, Article 36(3) of the UN Charter provides for the
peaceful settlement of disputes, whereby the Security Council is empowered
to recommend the referral of a legal dispute to the Court. Such
recommendations, for the most part, are considered sufficient to constitute a
basis for the ICJ to exercise jurisdiction.[1857]
The procedure followed by the Court in dealing with cases that come up for
hearing before it is found under the Rules of Court, adopted in 1978. For
contentious cases, the pattern is standard. The case itself is opened by the
applicant state, following the filing of a written memorial or a
comprehensive set of written submissions, laying down the basis on which
the Court has jurisdiction and thereafter, the merits of the case. In response
to this, the respondent state should either accept the jurisdiction of the court
and then file its own set of written proceedings, or, seek to submit
preliminary objections in an attempt to question the basis of the Courts
jurisdiction in the matter. If preliminary objections are raised, the court is
under a mandatory obligation to address it before looking into the merits of
the claim. Usually, the ICJ holds a separate public hearing to deal with the
preliminary objections, and then concludes the same with a judgment.
Preliminary objections usually pertain to questioning the jurisdiction of the
court in pertinence to the matter, or, to the admissibility of the case itself.
The inadmissibility of a case may relate to submissions that the issue itself
is not one that qualifies as a legal dispute, or that the issue cannot be taken
up as justiciable. Furthermore, a state may require the court to include all
the necessary parties in the case, so that the decision or judgment would be
clearly enunciated and actually be enforced. In such instances, if the
necessary party, if any, refuses to submit to the jurisdiction of the court, the
ICJ will not pass a judgment on the merits of the dispute. Once the
preliminary objections are decided upon and the case is deemed admissible
and maintainable, the respondent state will be asked to submit its written
submissions in the form of a written Memorial.
The next stage is an oral phase, where a series of public hearings takes
place. The court is formally addressed by the agents and counsel of the
states that are party to the dispute, and each side puts forward the core
585

aspects of its claims with due reference to the law as it stands.[1858] The
languages used in the court are English and French, and all that is said and
written in one language is translated and transcribed into the other language.
After the delivery of oral hearings, the court will then deliberate in private,
and the final judgment is then delivered in an open, public sitting. The
judgment of the ICJ is final and binding only on the states that are party to
the dispute, and with respect to all else, it only has a persuasive value.
[1859] In the midst of the proceedings, either state that is party to the
dispute is allowed to approach the court for orders to safeguard the status
quo in the matter until it is finally disposed off by the Court. These orders
are called Provisional Measures or Interim Measures, and can be made in
keeping with Article 41 of the Statute of the ICJ. To grant such an order, it is
a necessary prerequisite that the Court be satisfied that it has prima facie
jurisdiction to hear the merits of the case before granting provisional
measures.
Sometimes, after a case is filed, it may come to light that another state, not
party to the dispute, may find that its interests are affected in the trajectory
traversed by the dispute. In these circumstances, the state whose interests
are affected is allowed to make an application to intervene in the case, and
then participate in the proceedings as a full party. The interest spoken of
refers to an interest of a legal nature, as per Article 62. While the choice of
making application is fully within the discretionary domain of the state
concerned, it is entirely within the discretion of the International Court of
Justice to decide whether or not to allow the state to intervene. These kinds
of applications are rather rare, the first successful application occurred in
1991, by Nicaragua in the Land, Island and Maritime Frontier Dispute
case,[1860] between El Salvador and Honduras.
Following deliberation, the Court will issue a majority opinion that will
essentially serve as the definitive outcome of the dispute. It is open to some
of the judges to issue separate opinions- i.e., opinions that agree with the
outcome reached in the judgment of the court, but differ fundamentally in the
reasoning relied upon to arrive at the decision, or dissenting opinions if
their decision differs from the majority decisions.
The outcome or decision is binding upon the states that are parties to the
dispute, and there is no room for appeal. However, the states themselves
may choose to approach the court for a clarification of the decision, if it
comes to light that there is a dispute as to the meaning or scope of the
courts judgment, as per Article 60. Consequent to the fact that these
decisions are binding on the parties to the dispute, they must be enforced
586

upon the same. As per Article 94 of the UN Charter, the Security Council is
allowed to make recommendations to determine the measures that are to be
taken, in order to give effect to the judgment. These measures are confined
to those under Chapter VI of the Charter, which deals with the settlement of
disputes, and do not include Chapter VII that deals with the adoption of
sanctions in the wake of a use of force or a threat to use force. When one of
the parties to the dispute does not agree with the decision and is not willing
to enforce the same, the Security Council can do the needful according to
Article 94. Usually, states tend to honour their agreements and tend to accept
the decision of the court with respect to the case concerning it.
Advisory Jurisdiction
Besides deciding disputes between states, the ICJ is also free to offer
advisory opinions as part of its jurisdictional capacity. This is called the
Advisory Jurisdiction of the Court.[1861] Article 96 of the UN Charter
mentions, under Clause 1, that the General Assembly or the Security Council
may request the International Court of Justice to give an advisory opinion on
any legal question. Clause 2 suggests that other organs of the UN and
specialized agencies, which may, at any time be so authorized by the
General Assembly, may also request advisory opinions of the Court on legal
questions arising within the scope of their activities.
Advisory opinions cannot be sought by the states themselves, but only by
international organizations, namely, the six organs of the UN and all of its
specialized agencies. The question on which advice is sought, is necessarily
supposed to be a legal question, and not pertaining to a dispute. However,
there is every possibility for a dispute itself to open up a situation that
involves the need for the Courts advice on a question of law. Once a
request for an advisory opinion is filed, the Court then invites states and
organizations around the world, which it believes are likely to offer useful
information. These entities are free to make a presentation of written and
oral statements. The remainder of the procedure pertaining to deliberation
and expounding the law is on the same lines as is the case in contentious
proceedings.
The advisory opinion given by the court is not binding, and only comprises
a persuasive value unless otherwise decided through legislative instruments
suggesting the contrary. Many advisory opinions have been tendered by the
court, from the question on admissions to UN membership,[1862] to dealing
with the reparation for injuries suffered while serving the UN,[1863] from
answering a question on the legal consequences of the Construction of a
Wall in Occupied Palestinian Territory,[1864] to the dealing with the
587

unilateral declaration of independence in respect of Kosovo.[1865]

Chapter 24- International Economic Law

International relations would be bereft of any value were it not for the
lubricant of trade relations between states. Starting as early as civilization
began, trade and economic relations was virtually the foundation stone for
the forging of bonds between the erstwhile civilizations and the empire.
While trade began burgeoning, states began understanding that they were
relatively positioned with respect to their economic abilities. Slowly, this
power began manifesting itself in the form of dominance, and then
colonization. Downturns in the economy affected the relations of states with
one another, as each state fell prey to the collapsing economy, which then
led to the two massive wars. The end of the Wars was characterized by a
period where the economy struggled to find its roots, only to get back on
track, following a normal trajectory of booms and depressions.
With liberalization, privatization and globalization playing in the
international arena, interactions on account of trade became more in number.
States began forging relations through treaties towards economic
cooperation. Regional blocks for trade and economic collaboration came
into place. Gradually, a network of treaties and oft repeated state practices
came to govern the scope and ambit of international trade and commercial
relations, ultimately culminating in the creation of a body of law now
commonly accepted and known to be International Economic Law.
International economic law, as a body of rules and regulations, governs the
international economic order. It primarily seeks to deal with the economic
relations between states, and seeks to establish a set network of rules and
principles that must be abided by, in the process of conducting these
relations. Though it predominantly concerns itself with the nuances of interstate trade and commerce, it also governs matters such as anti-trust and
588

competition laws, financial laws, taxation, intellectual property and private

transaction laws as well.
The International Economic Order- A Historical outline
International economic law in the nineteenth century essentially hinged upon
heavily liberalized national legislation and a network of bilateral trade
agreements and treaties on friendship, commerce and navigation.[1866]
When the First World War broke out, this scheme fell prey to redundancy,
and the subsequent events unfolding as part of the Second World War kept
the economy instable. The 1941 Atlantic Charter drawn up at a time when
the world began to see reason in ending the war, envisioned the creation of
a liberal international economic structure, which was necessarily
encouraging to allow equal market access for all players in the international
arena. The viewpoint was supported by the United States and the United
Kingdom. This gave way to the Breton Woods Conference, in 1944, where
multilateral systems were given their first foundation. Much of what
transpired in the Conference became the basis for multilateral systems that
exist today. The conference predominantly worked with two objectives, one
being the reduction of all tariffs and other barriers to international trade, and
the other, being the creation of a global economic order to reduce the
number conflicts among states which were at opposing sides during the
Second World War. The conference culminated in the creation of three
economic organizations devoted to regulating the global flow of money and
trade relations, namely, the International Monetary Fund, the International
Bank for Reconstruction and Development, which was later rechristened as
the World Bank, and the General Agreement on Trade and Tariffs or the
GATT, which then became the World Trade Organization.
Later, in 1960, the Organization for Economic Cooperation and
Development or the OECD, came into existence as a successor to the
Organization for European Economic Cooperation, an entity that was
created during the Second World War as part of the Marshall Plan, whereby
the United States sought to reconstruct Europe.[1867] In addition to these
economic institutions, the Economic and Social Council of the United
Nations (ECOSOC), has created five regional commissions devoted to
economic concerns in Europe, Asia, Latin America and Africa. The United
Nations Conference on Trade and Development, established in 1964,
functioned to assist the process of economic development specifically for
the sake of developing countries. While these organs are created exclusively
for the sake of economic advancement, there have also been other units of
the UN that have assisted economic advancement, such as the Food and
589

Agricultural Organization, the United Nations Commission for International

Trade Law, the United Nations Development Program, the United Nations
Industrial Development Organization and the International Fund for
Agricultural Development among several others.
There are also plenty of regional arrangements, such as the Organization of
Petroleum Exporting Countries, the European Union, Asia-Pacific Economic
Cooperation, the Association of Southeast Asian Nations, the Caribbean
Community, the European Free Trade Association, the G20, G8, the South
Asian Association for Regional Cooperation, the Council of Arab Economic
Unity and the Pacific Agreement on Closer Economic Relations, to name a
few.
In the 1970s, several proposals were put forward by some developing
countries towards having an economic framework guiding all states in the
international community installed. Channelized through the United Nations
Conference on Trade and Development, these proposals came to be
understood together as the New International Economic Order. This
effectively replaced the Breton Woods System, so as to pivot concerns
towards developing countries instead of developed states.
The core values of the New International Economic Order were that
developing states ought to be given the right of regulation and control of all
multinational corporations within their territorial domain; that states must be
allowed to nationalize or expropriate foreign property based on conditions
and rules most conducive to their requirements; and, that states should be
allowed to set up associations and regional organizations based on their
economic requirements and relations. The most important factor of the entire
lot is that international trade needs to be stable, equitable and nondiscriminatory.
Economic Sovereignty and Permanent Sovereignty over
Natural Resources
The foundation on which the principles of international economic law
functions is the principle of economic sovereignty. The sovereign rights of a
state are not confined to its enjoyment of political independence, but also
economic freedom. This right would be essential for any state seeking to
establish a strong economic framework conducive towards its development.
States needed to enjoy a measure of control over the business-faring
segments in their territorial domain, and also had to be actively seized of
foreign presence on its territory in pursuance of an economic goal. This
resulted in the progressive understanding that each state was free to
590

determine a course of action in the form of drafting laws and policies to

govern the path of trade within their territorial domain. When it became
necessary to build economic relations with other states, it became equally
important to lay down some ground rules to abide by, in allowing economic
exchanges to run smoothly. However, many of these economic advancements
were of no use without relying on natural resources, and this became the
core aspect of several economic policies. The natural resources were
bridled under the sovereignty of the states in whose territorial expanse they
were. Those other states that wanted to exploit these resources towards
their profitable goals were also expected to conform to the rules laid down
by the states concerned, in dealing with their natural resources.
With the completion of decolonization, plenty of new states began emerging,
most of whom were slotted within the confines of being developing
countries. These countries no longer wanted their raw materials to be
tapped by their erstwhile rulers while they were colonies, and began laying
sovereignty claims over their natural resources. This led to the creation of
permanent sovereignty over natural resources. Following the adoption of
General Assembly Resolution 1803 (XVII) of 14 December 1962, states
began to enjoy permanent sovereignty over their natural resources.
Paragraph 1 of the resolution reads to suggest that the right of peoples and
nations to permanent sovereignty over their natural wealth and resources
must be exercised in the interest of their national development and of the
well-being of the people of the state concerned. Paragraph 2 requires that
the exploration, development and disposition of such resources, as well as
the import of the foreign capital required for these purposes, should be in
conformity with the rules and conditions which the peoples and nations
freely consider to be necessary or desirable with regard to the authorization,
restriction or prohibition of such activities. Nationalization, expropriation
or requisitioning of such natural resources, as Paragraph 4 says, shall be
based on grounds or reasons of public utility, security or the national
interest which are recognized as overriding purely individual or private
interests, both domestic and foreign. In such cases the owner shall be paid
appropriate compensation, in accordance with the rules in force in the state
taking such measures in the exercise of its sovereignty and in accordance
with international law. In any case where the question of compensation
gives rise to a controversy, the national jurisdiction of the state taking such
measures shall be exhausted. However, upon agreement by sovereign states
and other parties concerned, settlement of the dispute should be made
through arbitration or international adjudication. In addition, Paragraph 8
states that all foreign investment agreements freely entered into, by
591

sovereign states, shall be observed in good faith, and that states and
international organizations shall strictly and conscientiously respect the
sovereignty of peoples and nations over their natural wealth and resources,
in keeping with the UN Charter and the resolution itself.
The grant of Permanent Sovereignty rights over natural resources paved the
way for the opening up of national frontiers to usher in economic
cooperation and growth. States were able to tap into their natural resources
to allow their exchequer to benefit, while at the same time cashing in on
their respective comparative and absolute advantages with respect to other
states.
The Charter of Economic Rights and Duties of
States, 1974
The New International Economic Order, established following the adoption
of the Declaration for the Establishment of a New International Economic
Order by the UN General Assembly in 1974, also witnessed the onslaught of
the Charter of Economic Rights and Duties of States. Chapter 1 of the
Charter outlines the very basis of International Economic relations, noting
that economic relations, as well as all other forms of relations amongst
states, shall be governed by the basic tenets of sovereignty, territorial
integrity, political independence and sovereign equality of all states, nonaggression and non-intervention, mutual and equitable benefit, peaceful
coexistence, equal rights and self-determination of people, peaceful
settlement of disputes, remedying of injustices consequent to force that
deprive a nation of natural means conducive to its normal development, the
fulfillment in good faith of international obligations, respecting human
rights, promotion of international social justice and international
cooperation, among other things.
By article 1, every state has the sovereign and inalienable right to choose
its economic system, as well as its political, social and cultural systems in
accordance with the will of its people, without any form of outside
interference, coercion or threat in any form. In this background, the
deployment of economic coercion through blockades and the like is a very
pertinent question. Divergent views are available to suggest that the issue
may be answered both ways. While the generic rule against force is couched
under Art 2(4) of the UN Charter which prohibits the use of force,[1868] the
reliance upon the use of the term force as opposed to the use of the term
war is reason enough for one to believe that it could have evinced the
likelihood of instances that would require the coverage of situations where
592

violence, or any activity short of war, is deployed in international relations.

The question of whether this word includes the term economic force within
its ambit was considered amply in the past.[1869] The term force includes
any coercive measure, and it is without doubt that one may feel the need to
question if economic force is also ushered in within its gamut.[1870]
Reading this article in pari material with the 1965 Declaration on the
Inadmissibility of Intervention in the Domestic Affairs of the States,[1871]
one may cull out the fact that the common thread uniting both suggests that no
state has the right to intervene, directly or indirectly, for any reason
whatsoever, in the internal or external affairs of another state. The question
of whether the deployment of economic pressures by one state as its policy
in a bid to effect a change of policy of another state was examined in the
context of the Arab Oil Weapon, which was a policy tool effected during
the 1973 Oil Crisis.[1872] The quarantine imposed by the US upon Cuba in
October 1962 was held to be invalid in International Law in the eyes of
some scholars.[1873] Considerations that an economic blockade is an act of
economic war have been rife.[1874] In principle, an economic blockade is
defined as a set of coercive economic measures taken against one or more
countries to attempt to force a change in policies, or at least to demonstrate
the sanctioning countrys opinion of anothers policies.[1875] The aim of
relying on economic blockades as part of policy is to diminish the resources
of the enemy by cutting off external commerce, in order to make the state in
question change policies.[1876] There are certain UNGA Resolutions that
purport Article 2(4) implies economic force, however, UNGA Resolutions
hardly have the force of law.[1877]
There is no dearth of opinion buttressing the opposing claim that economic
blockades and sanctions are allowed in international law. Economic
sanctions, from the point of several scholars, are low-cost remedies against
the unacceptable behavior of a foreign government.[1878] They are
considered an important aspect of policy making of states, being that
economic blockades and sanctions are the easiest method of suggesting a
states disapproval of the other states policies.[1879] There is also the
recognized use for economic sanctions in international relations,
particularly considering that it is necessary to foster respect for core values
in international relations, such as the observance of human rights and
democratization.[1880] On May 20, 1997, former President of the United
States, Bill Clinton, had announced a ban on new investments in Myanmar
(still recognized as Burma by the United States, since the US did not
recognize the junta that emerged as the ruling power following a coup)
because the ruling military had refused to recognize the victory of the
593

opposition party in the May 1990 general election and had kept opposition
leader Aung San Suu Kyi under house arrest for six years.[1881]
Contrary views to those expressed by antagonists of using economic force
are also available in abundance. Some scholastic opinion suggests that
Article 2(4) of the UN Charter, which prohibits the use of armed force
alone, does not outlaw the use of economic sanctions.[1882] This
interpretation comes clear in the light of a construction using the preamble
to the Charter, which refers to the need that armed force should not be used
except in common interest.[1883] The travaux prparatoires of the UN
Charter reveal that the force sought to be avoided by incorporating Article
2(4), as depicted by the phrase in any manner not consistent with the
purposes of the UN Charter, is only armed force.[1884] The right to use
economic sanctions as part of its policy is a right vested in each state by
inherence in its sovereignty. Sovereignty as a rule encompasses all matters
in which states are permitted to decide and act without intrusions from other
sovereign states.[1885] These matters include the choice of political,
economic, social, and foreign policy. The norms of state sovereignty and
equality of states dictate that all states unanimously enjoy sovereign
equality. They have equal rights and duties and are all equal members of the
international community, notwithstanding differences of an economic,
social, political or other nature. There is no doubt that a states ability to
independently formulate policies of trade is part of its sovereignty.[1886]
The right of a state to determine its own trade partners is a well established
principle of international coexistence.[1887] Thus, a state may choose to
trade or not to trade with any state as it deems fit. However, whether it can
rightfully impose economic blockades or sanctions on another state is still
to be answered by the iron fist of the law itself.
However, while there is no regulation of International Law which justifies
an economic blockade, there is no regulation of international law explicitly
outlawing it. Intervention is prohibited where it bears upon matters in which
each state is permitted to decide freely by virtue of state sovereignty. As the
ICJ held, in the Nicaragua Case,[1888] sovereignty includes the choice of
political, economic, social and cultural systems and the formulation of
foreign policy. A states external policies are subject to the qualifications
imposed by International Law.[1889] Foreign trade, by its very nature,
affects other nations of the International Community.[1890] Thus, any
economic, trade and financial blockade against another State has always
merited and continues to merit energetic rejection because it violates
International Law and the principles of sovereignty of States, of nonintervention in their domestic affairs and freedom of trade as set forth in
594

numerous international legal instruments.

Article 2 states that every state has, and shall freely exercise full permanent
sovereignty, including the possession, use and disposal, over all its wealth,
natural resources and economic activities. Furthermore, each state has the
right to regulate and exercise authority over foreign
investment within its national jurisdiction in accordance with its laws and
regulations and in conformity with its national objectives and priorities and
no State shall be compelled to grant preferential treatment to foreign
investment; to regulate and supervise the activities of transnational
corporations within its national jurisdiction and take measures to ensure that
such activities comply with its laws, rules and regulations and conform with
its economic and social policies, Transnational corporations shall not
intervene in the internal affairs of a host State and every State should, with
full regard for its sovereign rights, cooperate with other States in the
exercise of the right set forth in this subparagraph; to nationalize,
expropriate or transfer ownership of foreign property, in which case
appropriate compensation should be paid by the State adopting such
measures, taking into account its relevant laws and regulations and all
circumstances that the State considers pertinent. In any case where the
question of compensation gives rise to a controversy, it shall be settled
under the domestic law of the nationalizing State and by its tribunals, unless
it is freely and mutually agreed by all States concerned that other peaceful
means be sought on the basis of the sovereign equality of States and in
accordance with the principle of free choice of means.
Although expropriation is left to the states to deal with, all the rules
governing expropriation have to comply with the minimum international
standards that stem from the rules governing state responsibility towards the
treatment of aliens. As such, the issue of expropriation has plenty of
political significance, and has also created plenty of controversy.[1891]
This minimum standard that is spoken of comprises two rules under the
portion of customary international law that governs expropriation.
Primarily, it is necessary that expropriation is done only for a public
purpose, i.e., with concern for the greater social good and necessity to act in
pursuance of the same.[1892] The second rule is that once expropriation is
done, the person from whom property is taken needs to be compensated for
the full value of the property. In effect, there should be prompt, adequate and
effective compensation.[1893]
Article 4 of the Charter says that Every State has the right to engage in
international trade and other forms of economic cooperation irrespective of
595

any differences in political, economic and social systems. No State shall be

subjected to discrimination of any kind based solely on such differences. In
the pursuit of international trade and other forms of economic cooperation,
every State is free to choose the forms of organization of its foreign
economic relations and to enter into bilateral and multilateral arrangements
consistent with its international obligations and with the needs of
international economic cooperation. In addition, Article 5 notes that all
States have the right to associate in organizations of primary commodity
producers in order to develop their national economies, to achieve stable
financing for their development and, in pursuance of their aims, to assist in
the promotion of sustained growth of the world economy, in particular
accelerating the development of developing countries. Correspondingly, all
States have the duty to respect that right by refraining from applying
economic and political measures that would limit it. In addition, Article 12
notes that states have the right to participate in sub-regional and regional
international cooperation in pursuing economic and social development.
Article 13 states that all states have the right to benefit from the advances
and developments in science and technology towards the acceleration of its
economic and social development.
The Charter does not stop with the enunciation of rights. Article 6starts off
the enlistment of duties that states are bound by, noting that i t is the duty of
States to contribute to the development of international trade of goods,
particularly by means of arrangements and by the conclusion of long-term
multilateral commodity agreements, where appropriate, and taking into
account the interest of producers and consumers. All States share the
responsibility to promote the regular flow and access of all commercial
goods traded at stable, remunerative and equitable prices, thus contributing
to the equitable development of the world economy, taking into account, in
particular, the interests of developing countries. In addition, by Article 7,
states also have the primary responsibility to promote the economic, social
and cultural development of its people, to which end each State has the right
and the responsibility to choose its means and goals of development, fully to
mobilize and use its resources, to implement progressive economic and
social reforms and to ensure the full participation of its people in the
process and benefits of development. All States have the duty, individually
and collectively, to co-operate in eliminating obstacles that hinder such
mobilization and use.
Keeping both these provisions in mind, there is no doubt that states may find
themselves in a quandary of sorts where both sets of priorities may come in
conflict with one another. Article 8 aims at resolving such a situation,
596

should it arise, by stating that states should co-operate in facilitating more

rational and equitable international economic relations and in encouraging
structural changes in the context of a balanced world economy in harmony
with the needs and interests of all countries, especially developing
countries, and should take appropriate measures to this end.
The most basic tenets on which the charter is built, is mentioned under
Article 10, as being that ll States are juridically equal and, as equal
members of the international community, have the right to participate fully
and effectively in the international decision-making process in the solution
of world economic, financial and monetary problems, inter alia, through the
appropriate international organizations in accordance with their existing and
evolving rules, and to share in the benefits resulting therefrom. Article 11
requires cooperation of states in order to strengthen and continuously
improve the efficiency of international organizations in implementing
measures to stimulate general economic progress. Article 15 adjoins the
Charter to Article 2(4) of the UN Charter, while noting that all states have to
promote the achievement of general and complete disarmament under
effective international control, and Article 16 requires the elimination of
colonialism, apartheid, racial discrimination, neo-colonialism and all forms
of foreign aggression, occupation and domination, and the economic and
social consequences thereof as a prerequisite for development. Article 26
mandates the coexistence of states in peace and tolerance. Cooperation of
states towards economic goals and development is underlined under Article
17, while Article 18 suggests the removal of discrimination and enlargement
of non-reciprocal and non-discriminatory tariff preferences to developing
countries. Articles 18 to 24 give more attention to developing countries.
The Charter is also credited with the recognition of the norms of common
but differentiated responsibilities towards the international community.
Article 29 requires that the sea-bed, ocean floor and subsoil thereof shall be
beyond the limits of national jurisdiction and shall be deemed as the
common heritage of mankind. Article 30 speaks of inter-generational equity,
whereby it stresses upon the protection, preservation and enhancement of
the environment for the present and future generations as part of the
responsibility of all states in the international community.
International Economic
Organizations
The Breton Woods Conference ushered in the creation of three organizations
that were devoted to dealing with international trade, economics and
commercial relations. The three organizations, then known as the
597

International Monetary Fund, the International Bank for Reconstruction and

Development and the General Agreement on Trade and Tariff (GATT), have
remained for the most part, in their structural form, the same. The only
significant changes in these organizations are that the International Bank for
Reconstruction and Development has been integrated as one of the five
major institutions as part of the World Bank Group and the World Trade
Organization has taken over as a replacement for the GATT.
The International Monetary Fund
The International Monetary Fund or the IMF, functions as an international
organization devoted to overseeing the global financial system. It was
conceptualized in July 1944, as part of the Breton Woods Conference, with
45 members, and then came into existence in December 1945, with 29 states
signing the agreement. Its goal back when it was established was to revamp
the world economy which had been ravaged by the wears of war. At that
time, several states contributed monetarily to a common pool, so as to
enable other states with monetary imbalances to borrow money from the
pool. Through this process, the IMF was able to stabilize the world
economic system.
The IMF participates and oversees the economic policies of its members,
and deals particularly with exchange rates and the balance of payments. Its
primary objectives are the attainment of stability of international exchange
rates and also to enable development by relying on Neo-liberalist economic
policies as a condition on which it offers loans, debt-relief options and
financial aid and assistance.[1894] Aside of this, the IMF also functions as
a lender of loans with different degrees of conditions accompanying them, in
keeping with the needs of developing and poor countries. It is headquartered
in Washington DC. It strives to improve the individual economies of its
member states, and works to weed out poverty and monetary imbalances,
while ushering in sustainable economic growth and high employment rates.
The International Monetary Fund has 187 members, all of whom are
members of the United Nations, along with Kosovo. Cuba was a former
member which left in 1964, and Taiwan left in 1980. By way of procedure,
all members are required to participate directly in the IMF. The IMF has a
24-member executive board, of which five executive directors are
appointed by the five members with the largest quotas, and nineteen
executive directors are elected by the remaining members of the IMF.
The IMF has plenty of functions to abide by, starting from supervisory and
regulatory responsibilities pertaining to exchange rates, to the regulation of
the multilateral system of payments and monetary transfers for international
598

transactions. It generally deals with plenty of financial activities and

financial responsibilities in international relations. The IMF is also vested
with the convertibility of currencies. Originally, the practice that dates back
to the Breton Woods system, involved a system whereby a fixed gold parity
rate of the US dollar was used as the bench mark, and to that, all other
world currencies were tied. However, in 1971, this mechanism was found
to be difficult to keep up with in consideration of economic factors, and
therefore led to the flexible exchange rate system, or the floating exchange
rate system, whereby the currency values are left to be determined by
market forces in tandem with other world currencies.
The IMF is also the proverbial lender of the last resort, functioning as an
apex bank in international economic relations. Member states are free to
seek recourse in the IMF through its scheme of Special Drawing Rights or
the SDRs, which function to offer requisite liquidity to the states in need of
money. Per se, these SDRs function as assets for each state, allotted to the
member states in its capacity as a reserve asset or for the sake of use in
support of the state of its own currencies. SDRs are valued by reference to a
basket of specified amounts of the four most important currencies, namely,
the Euro, the US Dollar, the British Pound and the Japanese Yen.[1895]
Using an SDR allows member states to obtain hard currency against their
own national currency.
The biggest drawback of the IMF and its working is the fact that its financial
aid is always bound by conditions. Stand-by arrangements are entered into
between the IMF and the debtor country, the latter being obligated thereby to
formally declare that it shall undertake a certain degree of economic reform
measures in order to counter the deficit in its balance of payments. While
this is in effect a condition on which the loan itself is given, it is not a treaty
obligation, and therefore, non-compliance does not tantamount to an
internationally wrongful act. However, if the state does not comply, the
moral sanction is installed in place, on account of the fact that the institution
may not lend to the state again since it did not comply with the condition
earlier.
The World Bank
In the Breton Woods Conference of 1944, the International Bank for the
Reconstruction and Development was set up along with the IMF and the
GATT. By Article 1 of the Articles of Agreement, the World Bank is set up
with the purpose of assisting the process of reconstruction and development
of the member states, and to promote a network of private foreign
investment by forging guarantees, by encouraging the participation in loans
599

and other investments made by private investors, to promote the long-term

balanced growth of international trade and to maintain equilibrium in
balances of payment, to arrange its lending policies to give priority to the
more useful and urgent projects and to conduct all its operations in keeping
with the consequences of international investment on business conditions in
its member states.[1896]
When it started off, the bank was originally concerned with the
rehabilitation of the world economy which had suffered several setbacks
following the two world wars. However, now that the economy is back on
track, the World Bank looks towards establishing a mechanism that would
provide loans for developing countries and establish capital programs for
them. It has an official goal of reducing poverty, and is obligated to be
guided by a commitment to promote foreign investment, international trade
and also enable capital investment.
Membership in the World Bank is more or less on the lines as that of the
IMF. It has 187 member countries, and another component of the World
Bank Group, International Development Association comprises 168
members. The World Bank Group comprises the International Bank for
Reconstruction and Development, the International Development
Association, the International Finance Corporation, the Multilateral
Investment Guarantee Agency and the International Centre for Settlement of
Disputes. Each member of the IBRD is a member of the IMF, and only those
who are party to the IBRD can join other institutions within the Bank.
The World Trade Organization
The World Trade Organization, as it exists today, took over from the
General Agreement on Tariffs and Trade, (GATT) established as part of the
Breton Woods Conference and signed in 1947. The GATT lasted until 1993,
when the World Trade Organization replaced it in 1995, although the
original GATT text is still in effect under the WTOs framework, although
modified in 1994.
In 1993, the GATT was updated to include plenty of new obligations within
its fold, at a time when it had 127 member states. The most significant of
these changes was the creation of the World Trade Organization, which had
the 75 members of the GATT as its founding members. The WTO came into
existence by officially commencing operations on January 1, 1995 under the
Marrakech Agreement. The other 52 members rejoined the World Trade
Organization in the following two years. As of 2011, the WTO has 153
member countries. Save for Syria and the Socialist Federal Republic of
Yugoslavia, every one of the original GATT members has joined the WTO.
600

The Federal Republic of Yugoslavia, now called Serbia and Montenegro, is

not recognized as the successor state of the Socialist Federal Republic of
Yugoslavia, thus leading to its application being recognized as a non-GATT
application. A working party has been sought to be established towards
examining Syrias request to be a part of the WTO. The GATT was, for all
practical purposes, a set of rules that the states agreed to be governed by.
The WTO, however, was a full-fledged institutional body. Over time, the
WTO has broken out of its confines and has begun dealing with trade in the
service sector and with intellectual property rights as well.
Among other functions, the WTO is vested with the responsibility of
overseeing the implementation, operation and actual functioning of several
agreements made within its ambit and also provides a forum that helps
states settle their disputes pertaining to trade, economy and commerce.
[1897] It also works to review national trade policies, while also seeking to
ensure coherence and transparency in the system, by relying on surveillance
in global economic policy making.[1898] The WTO functions in keeping
with the core values of non-discrimination, reciprocity, transparency and
honouring binding commitments.
The organizational hierarchy comprises the Ministerial Conference, which
comprises the representatives of all member states, the Dispute Settlement
Body, the Trade Policy Review Body and the general Council, which
comprises the Committees on Trade and Environment, Trade and
Development, Regional Trade Agreements, Balance of Payment Restrictions
and Budget, Finance and Administration; working groups on Trade, Debt
and Finance, and Trade and Technology Transfer; the Council for Trade in
Goods, the Council for Trade Related Aspects of Intellectual Property
Rights and the Council for Trade in Services.
The WTO operates on a one country, one vote system, for its decision
making. However, actual votes have never been taken in all the years of its
existence. Decision making has relied on consensus based processes, so as
to foster a more widely acceptable decision.

Chapter 25- International Environmental Law

With the evolution of science and technology, and the burgeoning of
economic and trade relations, the environment became the cynosure of all
eyes, particularly for the abundance in resources that it effectively was.
Consequently, a consistent pattern of reliance on the environment led to
exploitation of resources, and the emission of pollution owing to the
emergence of industries and technical processes that resulted in by-products
601

that were conveniently dumped on the surrounding environment. The

resultant denudation not only threatened to turn back on mankind with the
threats of global warming and the greenhouse effect, but also threatened the
depletion of the ecosystems key resources and the endangerment of species
as also the massive series of consequences emanating from pollution. The
deterioration of the environment led to the passage of legislation in a bid to
regulate activity that could prove damaging for the environment, and this
trend began around the 1960s.[1899] The evolution of several pieces of
legislation in bursts and spurts marked the creation of a singular body of
law that has come to be known as environmental law.
The entire spectrum of environmental law includes treaties and conventions
at the international level, statutes, rules and regulations and common law at
the national levels and jurisprudence at both levels. To a large extent, the
responsibilities of environmental law can be understood as dealing with
two broad issues, namely, the control, reduction and remedying of pollution
and emissions into the environment, and the conservation, management and
preservation of natural resources that are part of the environment. Most
legislation devoted to the environment, save for a few, are confined to
specific mediums and addresses their problems, such as air, water, land,
marine resources, forests, trans-boundary waterways and outer-space. The
core values that influence the legal system governing the environment are the
principles of conservation, responsibility, sustainability, protection,
precaution, equity and environmentalism. Most individual laws under the
spectrum of environmental law seek to preserve the environment in keeping
with the need to preserve human health and well being, and for the purpose
of inter-generational equity, in that the environment is preserved for the
succeeding generations.
Many norms under international environmental law have become
obligations that are to be followed by every subject of international law,
thereby having gained the status of erga omnes obligations. While all states
have a common obligation, environmental law also recognizes that each
state has a different set of capabilities from that of the others, and therefore,
makes their burden to discharge differential.
Environmental law has now been given another dimension through the law
of human rights. It is now widely accepted in international law that there
exists under the rubric of human rights, a right to a clean and healthy
environment as part of ones right to life. With the recognition of the right to
environment as a human right, environmental law has come to be taken more
seriously by several states in their policy making and legislation.
602

The scope of International Environmental

Law
International Law officially began to embrace the environment as one of the
concerns it had to address with the 1972 UN Conference on the Human
Environment, held in Stockholm. This functioned as the starting point for the
evolution of international environmental law as a distinct unit under the
ambit of the wider spectrum of international law itself. The Stockholm
conference ushered in an era of policy statements and documentation
suggesting the conformity of states to their obligations towards the
environment. The declaration was adopted unanimously, but the most
significant aspects of the declaration that remain till date as the most
important parts of international environmental law, are Principle 21 and
Principle 22. Although there was enough and more in pertinence to the
protection of trans-boundary environmental resources before the Stockholm
Conference, the Conference itself crystallized the development and put the
two principles on top of the priority list for the world. Principle 21 requires
all states to ensure that the activities carried out within their jurisdiction and
control do not cause damage to the environment of other states or areas
beyond the limits of national jurisdiction, and also notes that states have the
sovereign right of states to exploit their own resources pursuant to their own
environmental policies. Principle 22 requires states further develop
international law pertaining to liability and compensation for the victims of
pollution and other forms of environmental damage caused by activities
within the jurisdiction or control of such states to areas beyond their
jurisdiction. Following the conference itself, there was plenty of action at
the national and international level, where universal policy statements,
bilateral and multilateral agreements and declarations began to be made.
In 1974, the term pollution was defined in a recommendation adopted by the
Organization for Economic Co-operation and Development,[1900] to be the
introduction by man, directly or indirectly, of substances or energy into the
environment resulting in deleterious effects of such nature as to endanger
human health, harm living resources and ecosystems and impair or interfere
with amenities and other legitimate uses of the environment.
In 1982, the World Charter for Nature,[1901] was adopted by the United
Nations General Assembly, dealing with a host of variant aspects pertaining
to the environment. Following closely at the heels of the 1982 document,
was the 1987 Bruntland Report of the World Commission on Environment
and Development, which was an epoch making development in the field of
environmental law. It is commended with the creditworthy status of being
603

the first document to understand the importance of sustainable development,

while staunchly rooting for international cooperation in a bid to prune
responsibility towards the activation of common survival interests. It also
emphatically required the reduction of the depletive exhaustion of resources
and the pollution of the environment. This report is of particular importance
for having defined the term sustainable development, as meaning
development that meets the needs of the present without compromising the
ability of future generations to meet their own needs. The crux of the
definitive ambit of the concept specifies two things, namely, the conceptual
framework of needs, in that the poorer segments of society are to be given
overriding priority, and that though there must be development, it is also
important that there be curbs on the state of technology and its evolution in a
bid to safeguard the environments ability to meet needs, whether present or
future. So saying, it gave way to the concept of intergenerational equity.
[1902]
In 1992, the UN Conference on Environment and Development took place in
Rio de Janeiro, giving teeth to the principles discussed twenty years ago. It
was informally titled the Earth Summit, and resulted in a declaration that
comprised 27 principles that are intended as a guide for sustainable
development. Aside of dealing with the environment and the process of
introducing sustainable development in state policies, the declaration also
deals with the eradication of poverty, and offers priority for least developed
states.
As for the network of treaties governing the entire legal regime comprising
international environmental law, the evolution began with the United
Nations Environment Program, along with the Action Plan for the Human
Environment. After this, there were agreements specifically addressing
issues of water, air and land pollution consequent to burgeoning
environmental development and poverty. Nevertheless, it is the marked
evolution of the need to protect the marine environment and outer space that
is most appreciable.
The general concerns of environmental protection are addressed through the
Aarhus Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters, 1998, and
the 1991 Espoo Convention on Environmental Impact Assessment in a
Trans-boundary Context. These conventions govern the need for the
members of the international community to cooperate and come together in a
bid to protect and safeguard the environment.
Air Pollution
604

Air pollution is a massive problem for the international community, bearing

trans-boundary overtones considering that air is not stagnant and remains in
motility, plausibly transporting pollutants alongside. The 1979 Convention
on Long-Range Trans-boundary Air Pollution governs the issue of air
pollution and its impact on the human environment, and also seeks to
gradually reduce and prevent air pollution. The Environmental Protection:
Aircraft Engine Emissions, annexed to the 1944 Chicago Convention on
Civil Aviation governs the emission of pollutants into the atmosphere by
aircrafts. The UN Framework Convention on Climate Change of 1992 is
particularly important in this regard, as it addresses the core concerns of
global warming and the emission of greenhouse gases into the atmosphere.
The depletion of the Ozone Layer, consequent to the emission of ChloroFluoro Carbons into the atmosphere can be exceedingly disparaging to the
future of the environment. Governing the issue are two instruments, the
Vienna Convention for the Protection of the Ozone Layer of 1985, which
functions to consolidate the efforts of states in a bid to protect the ozone
layer, but does not speak of legally binding reduction obligations of the use
of chemicals that lead to ozone depletion, and the Montreal Protocol on
Substances that Deplete the Ozone Layer of 1989, accompanying the Vienna
Convention, which works to protect the ozone layer by phasing out the
production of all those substances that contribute to ozone depletion. In
1997, the Kyoto Protocol was adopted, encouraging all signatory states to
legally adhere to targets of limitation or reduction of greenhouse gas
emissions.
In 1988, the Sophia Protocol was adopted in congruence with which the
control of emissions of nitrogen oxides or their trans-boundary fluxes
became an obligation for the signatory states to adhere to. In 1994, the Oslo
Protocol on Further Reduction of Sulfur Emissions came into place,
specifying the ceilings on emissions for the member states, and also
requiring reporting to the Executive Body on a periodic basis. Seven years
later, in 2001, the Stockholm Convention on Persistent Organic Pollutants
was signed. The Convention sought to control production, trade, disposal
and use of twelve specifically listed persistent organic pollutants.
Water & Marine Pollution
As for the protection of water as a resource and as part of the environment,
the segregation is manifold. The Convention on the Protection and Use of
Trans-boundary Watercourses and International Lakes of 1992 governs the
protection of freshwater resources that are found flowing in a path that cuts
across boundaries and covers several states through its course. The Basel
605

Convention on the Control of Trans-boundary Movements of Hazardous

Wastes and their Disposal, 1989 governs the issue of hazardous wastes and
the manner of their disposal in trans-boundary waterways. The purpose of
this convention is to ensure that the disposal of wastes of hazardous nature
into the trans-boundary resources common to a few states together, does not
jeopardize the use of these resources by the states that do not pollute them.
The marine environment is governed by a series of laws and conventions
passed by the international community, and the International Maritime
Organization. It came into existence on March 17, 1958, and functioned as a
wing of the UN in relation to regulating international maritime affairs. It has
developed about 40 conventions, of which five deal with the marine
environment and are in force, while two others that also govern
environmental concerns are still to be adopted and brought into force. The
marine environment is threatened chiefly by oil spills, dumping of wastes
and exploitation of resources. Oil pollution is protected by the 1945
International Convention for the Prevention of Pollution of the Sea by Oil,
the 1969 International Convention Relating to the Intervention on the High
Seas in Cases of Oil Pollution Casualties, the 1971 International Convention
on the Establishment of an International Fund for Compensation for Oil
Pollution Damage, along with the 1990 Convention of the International
Maritime Organization on Oil Pollution, Preparedness, Response and
Cooperation, all of which address the concerns of oil pollution in the sea.
The issue of dumping of wastes in the sea is governed by the 1972
Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter, the 1973 Convention for the Prevention of Pollution from
ships, the 1996 International Convention on the Liability and Compensation
for Damage in Connection with the Carriage of Hazardous and Noxious
Substances by Sea, the Protocol on Preparedness, Response and
Cooperation to Pollution Incidents by Hazardous and Noxious Substances of
2000. The basic issues these conventions deal with are the pollution of the
sea with the dumping of polluting wastes, hazardous substances and noxious
substances. The conventions work a mechanism of both protection and
prevention, and action in the aftermath. Besides these international
conventions, there are plenty of regional agreements such as the 1992
Convention for the Protection of the Marine Environment of the North-East
Atlantic signed in Paris, the Convention on the Protection of the Marine
Environment of the Baltic Sea Area in 1992, the Convention on the
Protection of the Black Sea against Pollution in 1992, the Convention for the
Protection of the Natural Resources and Environment of the South Pacific
Region in 1986 and the Convention for Cooperation in the Protection and
606

Development of the Marine and Coastal Environment of the West and

Central African Region in 1981. The exploitation of resources in the marine
environment is kept under check by the series of conventions pertaining to
Marine Living Resources. The 1980 Convention for the Conservation of
Antarctic Marine Living Resources of 1980, along with the Agreed
Measures for the Conservation of Antarctic Fauna and Flora, the Convention
for the Conservation of Antarctic Resources and the Protocol on
Environmental Protection to the Antarctic Treaty govern the marine
resources in the Antarctic Circle. The Convention for the Conservation of
Atlantic Tunas of 1996 governs the species of tunas in the Atlantic Ocean,
and the Convention for the Regulation of Whaling governs the process of
whaling, the conservation of whales and streamlines the whaling industry
and its activities.
In keeping with the fact that several resources are at the disposal of several
states and that these trans-boundary resources need to be protected, there
have been plenty of conventions addressing the concerns surrounding their
preservation and the protection of the resources from pollution. The
Convention on Civil Liability for Damage Caused during Carriage of
Dangerous Goods by Road, Rail and Inland Navigation Vessels, 1999, the
Bamako Convention on the ban of the Import into Africa and the Control of
Trans-boundary movements and management of Hazardous Wastes within
Africa, 1991, the Convention on the Trans-boundary Effects of Industrial
Accidents, 1992, the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International
Trade, 1998 and the European Agreement Concerning the International
Carriage of Dangerous Goods by Inland Waterways, 2000 deal with the
movement of hazardous chemicals and dangerous goods through transboundary paths traversed by environmental resources. Aside of these
conventions, the European Agreement concerning the International Carriage
of Dangerous Goods, 2000, the Food and Agriculture Organizations
International Code of Conduct on the distribution and use of Pesticides of
1985, the Stockholm Convention on Persistent Organic Pollutants, 2001
govern the carriage and distribution of pesticides and other organic
pollutants.
Conservation of Resources
Aside of preventing pollution and dumping on the environment, the
conservation of resources has also become an extremely important rule.
Starting out in 1959, the Antarctic Treaty marks the beginning of this
commitment, where the protection of resources in the Antarctic Circle was
607

the core aim. In 1972, the World Heritage Convention, i.e., the Convention
Concerning the Protection of the World Cultural and Natural Heritage
worked on a means to preserve and protect the cultural and natural heritage
of every state, in keeping with the fact that for a great part of the populace,
the preservation of their cultural and natural heritage would sub-serve their
interests best. In 1992, the Convention on Biological Diversity was
installed in place, as a mechanism that sought to address the concerns of
dwindling species and endangered segments of the animal kingdom, and thus
tried to establish a mechanism of protecting and preserving these species.
Specific attention has been given to certain species through different
instruments, such as the Convention on the Conservation of Migratory
Species of Wild Animals, 1979, the Convention on the International Trade
in Endangered Species of Wild Flora and Fauna, 1973, the Convention on
Wetlands of International Importance, especially Ramsar, 1971 and the
International Tropical Timber Agreement of 1994. Another relevant concern
is desertification, since the continuous cutting down of greenery could
render the process of desertification far speedier.
Modifying the environment is also addressed by the legalese governing the
environment. Through the 1977 Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques, the
environment is sought to be protected from any tactics that may prove to be
jeopardizing to the continued sustenance of the environment in its original
form.
The burgeoning reliance on technology alone does not contribute to the
exceedingly alarming rate of denudation of the environment. The reliance on
nuclear weapons is also a very pertinent threat. Although the number of
instances where nuclear weapons have been used is negligible, even if one
were to include within the numeric ambit the testing procedures, the impact
on the environment is a rather worrisome factor. Keeping this in mind, the
Comprehensive Test Ban Treaty of 1996, the Convention on the Assistance
in the Case of a Nuclear Accident or Radiological Emergency, 1986, the
Convention on Early Notification of a Nuclear Accident, 1986 and the
Vienna Convention on Civil Liability for Nuclear Damage, 1963, address
the pertinent concern of working out a mechanism to remedy the adverse
impact on the environment should there be an accident or a use of nuclear
weapons. The Chernobyl disaster was a nuclear accident that took place on
April 26, 1986, in Ukraine. With an explosion and a subsequent fire, plenty
of radioactive contamination entered the atmosphere, causing the worst
nuclear disaster in the history of mankind. Aside of eating up heavily on the
lives, health and economical aspects, the disaster affected the environment
608

in abundance, causing radioactive smoke and plenty of contamination. The

recent earthquake of 9.00 on the Richter Scale in Japan, on March 11, 2011,
resulted in the Fukushima Daiichi Nuclear Disaster, which witnessed a
massive series of equipment failures, nuclear meltdowns and the release of
radioactive materials at the Fukushima I Nuclear Power Plant. The
environmental consequences were terrible, as contamination spread quickly,
with artificial radio-nuclides taking its toll on the environment.
Environmental law under other sources
Aside of treaty law, there are plenty of principles under the ambit of
customary international law that form a part of international environmental
law. Customary international law has been crystallized through state
practice as evidenced by declarations and through the expounding of the law
by the judiciary. Some of the core values of customary international law
relating to the environment have burgeoned into principles that govern and
underlie most treaties and conventions relating to international
environmental law. As is known, customary law evolves consequent to
consistent state practice, along with opinion juris, or the belief that the
states perceive themselves to be legally bound to adhere to the practice. The
most important values upon which international environmental law is built
on, are the precautionary principle, the polluter-pays principle, the rule of
sustainable development, the ecosystem principle and the principle of intergenerational equity.
Aside of these sources, the decisions of the judicial wing at the international
level are particularly important in the course of the trajectory of the
evolution of international environmental law. In the International
Commission on the River Oder Case,[1903] the Permanent Court of
International Justice recognized the duty owed by all states to the
environment, noting that the community of interest in a navigable river
becomes the basis of a common legal right, the essential features of which
are the perfect equality of all riparian states in the use of the whole course
of the river. The principle was also coupled up with the norm of territorial
integrity in the Island of Palmas Arbitration,[1904] which mandated that
states had an obligation to protect the territories of other states, environment
included. The most important milestone in judicial developments in
international environmental law was the Trail Smelter Arbitration,[1905]
between Canada and the United States over sulfur dioxide pollution from a
Canadian smelter. The smelter itself was built in a valley shared by British
Columbia and the State of Washington. The sulfur pollution proved to be
609

harmful to the environment on the American side of the border. In this case,
the tribunal was specific about the fact that under principles of international
law, as well as the law of the United States, no state has the right to use or
permit the use of territory in such a manner as to cause injury by fumes in or
to the territory of another or the properties or persons therein, when the case
is of serious consequence and the injury is established by clear and
convincing evidence. The issue of environmental pollution consequent to the
use of nuclear weapons was examined in the Request for an Examination
of the Situation in Accordance with Paragraph 63 of the Nuclear Tests
Case,[1906] where the ICJ noted that the French Nuclear testing in the
Pacific was conducted without prejudice to the obligation of states to
respect and protect the environment. Furthermore, in The Legality of the
Threat or Use of Nuclear Weapons case,[1907] the ICJ recognized and
declared the fact that the existence of the general obligation of states to
ensure that activities within their jurisdiction and control respect the
environment of other states or of areas beyond national control is now a part
of the general body of international law pertaining to the environment. Aside
of this, the GabcikovoNagymaros Project case,[1908] marked the
acknowledgment on part of the ICJ of the principle of sustainable
development as the core aim of every subject of international law. It was
mandated that regard must be had for the environment while embarking upon
development.
Some of the declarations consequent to conferences and summits have also
helped formulate principles as part of customary international law.
Principle 21 of the Stockholm Declaration, 1972, speaks of the right to
exploit resources to be enjoyed in keeping with the responsibility to protect
the environment. This is also reflected under Principle 2 of the Rio
Declaration. Most of these norms are binding upon states by virtue of having
attained the exalted status of erga omnes obligations, namely, obligations
that all states are bound to honour.
Basic Principles in International Environmental Law
Although the entire spectrum of International Environmental Law comprises
a mix of customary and conventional laws, there are some core values that
are common to the two, and are often found to be underlying the basic tenets
of international environmental law.
Common but Differentiated
Responsibilities
Every state owes a duty of care towards the environment, part of which is
the duty to prevent pollution, to mitigate risks of hazardous activities, to
610

conserve and preserve the environment and all the resources it offers and
wherever applicable, to remedy losses ensuing from damage caused to the
environment. The principle stems from the fact that all states are equal in
terms of sovereignty. However, although equal in status, the states
themselves have massive differences amongst themselves, starting from
their economic and social statuses, to their political conditions and policies.
Consequently, therefore, each state may not be able to discharge their
responsibilities and duties to the same extent as their counterparts. The
principle of common but differentiated responsibilities, as has become a
recognized concept in many international instruments such as the 1992
Climate Change Convention, Principle 7 of the Rio Declaration and
Principle 23 of the Stockholm Declaration, notes that it will be necessary to
consider the systems of values as they prevail in each state, and the extent to
which standards can be applied- in that they may be valid for developed
countries but may not quite be valid for developing countries. Consequently,
there should be differential treatment meted out to both states. The 1992
Convention on Biodiversity also recognizes the importance of the rule,
under Article 20, while the Climate Change Convention emphasizes on the
rule under Article 4.
Inter-generational Equity
The concept suggests that there should be fairness in usage of the
environment, in that there should not be an over use by one generation to the
point that there will be absolutely nothing left in the form of quality
environment for the future generations. The concept of intergenerational
equity is the very basis upon which some of the major declarations in
international environmental law are founded. It essentially requires humans
to hold the natural and cultural environment of the earth in common both
with other members of the present generation, and with other generations,
past, and especially, the future.[1909] The 1987 Brundtland Report made
specific reference to the need to preserve the environment for the future
generations. Principle 21 of the Stockholm Declaration of 1972 speaks of
intergenerational equity. The substantive part of the 1992 Climate Change
Convention, specifically under Article 3, mentions intergenerational equity,
noting that Parties should protect the climate system for the benefit of
present and future generations of humankind, on the basis of equity and in
accordance with their common but differentiated responsibilities. More than
just dealing with preserving the environment by avoiding pollution, the
concept also seeks to extend towards conserving the elements that constitute
the environment, in that species should be preserved and prevented from
shrinking in numbers. The International Court of Justice examined the
611

implications of inter-generational equity, in the Maritime Delimitation in

the Area between Greenland and Jan Mayen,[1910] where Justice
Weeramantrys separate opinion explained the principles in detail, touching
upon the concept of wise stewardship of natural resources and their
conservation for the benefit of future generations. In the Nuclear Tests
Case,[1911] Justice Weeramantry noted that the principle of
intergenerational equity was an important and rapidly developing principle
of contemporary environmental law, and raises in pointed form, the
possibility of damage to generations yet unborn.
The Precautionary Principle
The precautionary principle is another major concept in international
environmental law, working to balance the developmental needs of states
with the imminent need to protect the environment. The principle requires
states to take precautionary measures in the wake of potential harm that may
ensue from scientific uncertainty consequent to activities undertaken by
states in pursuit of development. The Climate Change Convention, the
Bamako Convention, the Convention on Biodiversity and the Straddling
Stocks Agreement are amongst the more prominent conventions comprising
the rule as part of its host of provisions. Principle 15 of the Rio Declaration
mentions that in order to protect the environment, the precautionary
approach shall be widely applied by States according to their capabilities,
and, where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation. The Bamako
Convention deals with the transport and storage of hazardous waste in
Africa, and requires all parties to take precautionary measures in respect of
their activities. The Convention on Biodiversity requires states to ensure
that in their pursuit of permanent sovereignty over resources they shall
ensure that activities in their jurisdiction shall not cause environmental harm
in other jurisdictions. The Straddling Stocks Agreement relates to the
domestic and trans-boundary context of environmental protection, and
requires states to ensure a precautionary approach in dealing with fish
species in their own national jurisdiction and in the high seas. The General
Assembly has vociferously advocated the application of the precautionary
principle in keeping with the mandate of Sustainable development as under
Resolution 58/14.[1912] The precautionary principle has received
recognition as being a norm of customary international law, in the words of
jurists world over.[1913]
Environmental Impact Assessments
612

Allied with the precautionary principle is the concept of environmental

impact assessments, where states are under an obligation to evaluate the
impact that their industrial and developmental activities are likely to have
on the environment. This is an extremely valuable tool for implementing the
precautionary principle, as the states are better equipped to take a call on
the direction of their activities should it be found that they may be impacting
the environment in an adverse manner. The use of an EIA in a developmental
policy was suggested by Judge Weeramantry in the Nuclear Tests Case.
[1914]
The Polluter Pays Principle
The Polluter Pays Principle implies that the party responsible for the
pollution shall pay for the damage done to the environment consequent to his
activities. It has attained the status of regional customary law, since it has
strong support in the OECD and EC states, and has also been mentioned
under Principle 16 of the Rio Declaration on Environment and
Development. The principle functions as a deterrent rule, in an attempt to
prevent pollution, by imposing heavy costs for the damage caused. It is also
called the extended polluter responsibility principle. Usually, the penalty for
pollution is imposed in the form of taxes, tradable pollution permits, fines
and penalties. The Kyoto Protocol is a classic example of this principle,
where states are under an obligation to reduce their greenhouse gas
emissions, and therefore to bear the cost of reducing, preventing and
controlling emissions.
Sustainable Development
Sustainable development has been mandated by the General Assembly as
being an integral facet of International law over the years.[1915] It refers to
the obligation of states to use their resources and pursue developmental
goals in a manner that sustains the environment instead of deteriorating it.
The term was coined for the first time in the Brundtland Commission
Report, in 1987, where it was defined as the rule which requires that each
state meets the needs of the present without compromising the ability of
future generations to meet their own needs. Principle 1 of the Rio
Declaration notes that human beings are at the centre of concern for
sustainable development.
State Responsibility and International
Environmental Law
States are responsible under international law for every instance of breach
committed by its authorized personnel and those in official capacity under
613

its control. These are the fundamental principles of state responsibility, and
any breach warrants the state responsible for the breach to make good the
loss to the state suffering the consequences of the breach. The victim state
may seek recourse to different channels to seek this remedy. The same rule
is applicable to international environmental law, where states owe it to
other states, under the umbrella norm of not causing harm or injury to the
rights of another state, to be committed to the protection of the environment.
The norm has evolved as a rule integral to international law, as was stated
in the International Commission on the River Oder Case,[1916] where it
was noted that the community of interest in a navigable river forms the basis
of a common legal right, whereby there is perfect equality for all the
riparian states to enjoy the entire course of the river. The notion of
territorial sovereignty buttresses this right, in that a state is obliged to
protect and safeguard everything within its own territory the rights of other
states.[1917] In the Trail Smelter Arbitration,[1918] this rule was related
specifically to the obligation of protecting the environment, where the
tribunal suggested that no state has the right to either use or to permit the use
of its own territory in a manner that would cause injury to the other state.
This was contextualized and related to the factual matrix of the case, where
a Canadian smelter built in a valley that was shared by British Columbia
and Washington, had caused pollution by emitting sulfur dioxide pollution.
This reasoning is a product of a leaf taken out of the Corfu Channel Cases
book,[1919] where the ICJ had enunciated the norm that each state had an
obligation to ensure that its territory is not put to use in a manner contrary to
the rights of other states. States are also prohibited from using their own
territory in a manner that is found to be prejudicial to the interests of other
states.[1920] The Court, in Legality of the Threat or Use of Nuclear
Weapons,[1921] the Court made certain the fact that there exists an
obligation on part of states to see to it that the activities carried out within
their jurisdictional control respect the environment of other states, and all
those regions that come outside the ambit of the states jurisdictional
control. The court noted that this rule had become a very integral part of
international environmental law. These norms are integral aspects of
international law, as has been seen in different international instruments.
[1922]
In evaluating the liability of states in the context of international
environmental law, there are varying ideas as to what the standard should
ideally be. On the one hand, there is the norm that seeks adherence to
maintaining strict liability standards, whereby states are under an obligation
of absolute nature, to prevent pollution, and are hence liable for any
614

deviation from their duty irrespective of whether the element of fault exists.
[1923] This is particularly advantageous in that it serves as a deterrent
effect for states, keeping them away from polluting the environment.
However, there is no clarity in the approach followed by international law
where this rule is concerned. Most decisions in international law have
leaned heavily towards the fault-based liability parameter. In the Trail
Smelter Case,[1924] right from the inception, it was accepted that Canada
was responsible, thereby focusing on the question of compensation that was
due, and how the smelter would function in the future. This shows reliance
on the strict liability theory, but, in the Corfu Channel Case,[1925] the
strict liability theory was not accepted. In the Gut Dam Arbitration,[1926]
the strict liability theory was applied, whereby Canada was held
responsible when a dam constructed by it with US approval, straddling the
territory of both the states resulted in an increase in the level of water in the
river and in Lake Ontario, causing floods during storms. However, this is
not quite the apt example for the application of strict liability, especially
since the United States approval was conditional, in that it mandated that
US citizens were to be indemnified for any damage or detriment caused by
the construction or operation of the dam.
To a large extent, the question of fault remains unanswered in a concrete
manner by conventions. The Convention on International Liability for
Damage Caused by Space Objects, 1972, requires absolute liability for
damage caused by space objects on the surface of the earth or to aircrafts in
flight under Article II, and claps down fault-based liability for damage
caused everywhere else, or to people or property on board a space object
under Article III. To a large extent, treaties mandate that states must exercise
reasonable care and diligence when it comes to matter that is harmful,
hazardous or inherently dangerous, and when there is a deviation therefrom,
responsibility is imposed accordingly. This is particularly seen in Article 1
of the London Convention on the Prevention of Marine Pollution by
Dumping of Wastes, 1972, Article 2 of the Convention on Long-Range
Trans-boundary Air Pollution, 1979, Article 2 of the Vienna Convention for
the Protection of the Ozone Layer, 1985, Articles 139, 194 and 235 of the
Convention on the Law of the Sea, 1982, Articles 7 and 8 of the Convention
for the Regulation of Antarctic Mineral Resources Activities, 1988, and
under Article 2 of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992.
While on the subject of responsibility and liability, the question of liability
for damage caused by private persons, whether artificial or natural, is a
615

rather important one.[1927] When environmental damage results from

unlawful activities carried out by the officials of a state, the state is per se
responsible. States are under a duty to ensure that all their international
obligations are respected and adhered to on their territory. The states
responsibilities with respect to the environment are also of a similar kind.
Thus, when an international norm in the form of a treaty or convention that
the state has signed, requires the state to follow a certain course of action,
say, by legislating in accordance with the treaty, or by imposing checks,
balances, limits and restrictions, a state is under an obligation to do the
needful. In general, a state is responsible for the acts of private entities and
private persons to the extent that it was carried out under the direction,
supervision and control of the government, or in pursuit of official duties.
However, some agreements may go so far as to hold a state responsible for
the act of any private person irrespective of whether their acts were carried
out in gubernatorial capacity or otherwise. This is seen in the context of
Article 6 of the Outer Space Treaty, 1967, which notes that states bear
international responsibility for all national activities in outer space,
irrespective of whether these activities are carried out by governmental or
non-governmental agencies. This is also echoed under Article 1 of the
Convention on International Liability for Damage caused by Space Objects,
1972, and Article XIV of the Moon Treaty, 1979.
In conjunction with state responsibility, is the allied question of protecting
trans-boundary resources, namely, resources that are not confined to the
territory of one state, but instead are found to be common to two or more
states. The International Law Commission dealt with the issue as early as
1978, when it drafted rules on the International Liability for the Injurious
Consequences of Acts Not Prohibited by International Law, dealing
specifically with environmental harm.[1928] The end product of several
years of deliberation including questions on whether international liability
for acts not violating international law could be acceptable or not, was
document comprising the Draft Articles on Prevention of Trans-boundary
Harm from Hazardous Activities, in 2001.[1929] By Article 1, the scope
and ambit of the entire draft is noted as being applicable to activities not
prohibited by international law, but involving a risk of causing significant
trans-boundary harm through their physical consequences. By Article 2, the
risk of causing significant trans-boundary harm is defined as including a
high probability of causing significant trans-boundary harm, and a low
probability of causing disastrous trans-boundary harm.[1930] To affix
liability, the draft articles note that the state of origin, or the state where the
activities either are taking place already or are to take place, shall take all
616

the appropriate measures to prevent significant trans-boundary harm, or, at

any rate, to minimize the risk, under Article 3. The yardstick is the exercise
of due diligence and reasonableness, in that that which is considered
appropriate and proportional to the degree of risk needs to be taken up.
Article 4 requires states to cooperate in good faith in trying to prevent such
activities from causing significant trans-boundary injury, in minimizing the
effects of the risk and in seeking assistance of international organizations
should the need arise. Article 5 requires the states to take all the necessary
legislative, administrative and other action, including the establishment and
installation of all the requisite monitoring methodology necessary to
implement the obligations outlined under the draft articles, and by Article 6,
should take prior authorization for any activities to be undertaken under the
ambit of these articles. Article 7 states that when authorization is being
deliberated and decided upon, it is necessary that the state base its answer
on a thorough assessment of the possible trans-boundary harm, and even
conduct an environmental impact assessment should the need arise. By
articles 8 and 17, if the assessment indicates any risk, it is necessary that the
same be notified in a timely manner to the state that is likely to be affected
adversely, and also, all the necessary information must be provided to such
a state. By Article 9, the states so concerned should enter into consultations
with one another in order to arrive at a feasible set of solutions to come up
with measures that must be adopted to prevent and mitigate the risk of transboundary harm, or to at least minimize the risk, and all solutions must be on
an equitable basis in consideration of all interests. Article 10 explains this
equitable balance of interests, stating that the factors to be considered
include the degree of risk of significant trans-boundary harm and the
availability of means of preventing or minimizing such risk or of repairing
the harm, the importance of the activity, taking into account its overall
advantages of a social, economic and technical character for the state of
origin in relation to the potential harm for the states likely to be affected, the
risk of significant harm to the environment and the availability of means of
preventing or minimizing such risk or restoring the environment; the
economic viability of the activity in relation to the costs of prevention
demanded by the states likely to be affected and to the possibility of
carrying out the activity elsewhere or by other means or replacing it with an
alternative activity; the degree to which the states likely to be affected are
prepared to contribute to the costs of prevention and the standards of
protection which the states likely to be affected apply to the same or
comparable activities and the standards applied in comparable regional or
international practice. The Draft Articles were later buttressed by the 2006
617

Draft Principles on the Allocation of Loss in the Case of Trans-boundary

Harm Arising out of Hazardous Activities, whereby compensation was to be
made promptly and in keeping with the loss suffered in terms of the
quantum, to the victims of any form of trans-boundary damage, and whereby
liability came to based heavily on strict responsibility bases, as opposed to
a necessary proof of fault.

[1]

Aron

M ifsud-Bonnici,

The

Aim

of

Public

International

Law,

http://www.mifsudbonnici.com/lexnet/articles/publicint.html

[2] Arguments used by Snow (A.J vi. (1912), 890-900; R.G.xix (1912) pp.309-318), against the term international law, and
his proposal to substitute for it the term supernational law are based on the untenable dictum that all law comes from above

[3] L.Oppenheim, International Law, (New York, Longmans Green & Co., 1905) pp.1-2.
[4] Prof. Oliver J. Lissitzyn, International Law in a Divided World, International Conciliation No.542 (New York: Carnegie
Endowment for International Peace. 1963. 69 pp.)

[5] See Segment on International law as a soft law [FN LATER]

[6] 2 Ex. D. 63 153, 154 (1876)
[7] S.S. Lotus Case (1927) PCIJ Series A No.10
[8] Professor Charles Cheney Hyde, International Law, (Boston: Little, Brown and Co. 1945)
[9] W.G. Greewe, Epochen der Volkerrechtsgeschichte, 1984, 19-25; Antonio Cassesse, International Law in a Divided
World, 1986, 37-38; A. Nussbaum, A Concise History of the Law of Nations, 1962; J.H.W.Verzjil, International Law in
Historical Perspective, 11 volumes, 1968-1991; P.S. Onuf/N.Onuf, Federal Union of the Modern World, The Law of Nations
in an Age of Revolutions, 1776-1814, 1993.

[10] W. Preiser, History of the Law of Nations: Ancient Times to 1648, EPIL 11 (1995) 716-49
[11] D.J. Bederman, International Law in Antiquity, Cambridge 2001
[12] See generally with regard to Byzantium, M . De Taube, LApport de Byzance au

Developpement du Droit
International Occidental, 67 HR, 1939, p.233, and S. Verosta, International Law in Europe and Western Asia between 100650 AD, 113 HR, 1964, p.489

[13]

S. Rosenne, The Influence of Judaism on International Law, Netherlands Tijdschrift voor Internationaal Recht,
1958, p.119

[14] Nussbaum, Law of Nations, p.3

[15] Nussbaum, Law of Nations, pp.1-2
[16] Nussbaum, Law of Nations, pp.1-2
[17] Neyland, R. S. (1992). "The seagoing vessels on Dilmun seals". in Keith, D.H.; Carrell, T.L. (eds.). Underwater
archaeology proceedings of the Society for Historical Archaeology Conference at Kingston, Jamaica 1992. Tucson, AZ:
Society for Historical Archaeology. pp. 6874.

[18] See generally M . S. Asimov and C. E. Bosworth, History of Civilizations of Central Asia, Vol IV:The Rise of Islam
and Nomadic and M ilitary Empires in Central Asia, Paris: UNESCO Publishing, 1998, ISBN 92-3-103467-7;

[19] Nussbaum, Law of Nations, pp.51-54

[20] Nussbaum, Law of Nations, pp. 143-149
[21] Nussbaum, Law of Nations, pp. 17-19
618

[22] G. Holdsworth, A History of English Law, London, 1924, vol.5, pp.60-3

[23] Ibid, pp.63-129
[24] Nussbaum, Law of Nations, pp.29-31
[25] See generally G. M attingley, Renaissance Diplomacy, London 1955
[26] See generally Wilhelm Georg Grewe, M ichael Byers, The Epochs

of International Law, (Epochen der

VAlkerrechtsgeschichte), (1984, Walter de Gruyter)

[27] Rudolf Bernhardt, (ed.) The Encyclopaedia of Public International Law, discussing W.Prieser, History of the Law of
Nations, EPIL 11 (1995), S.Verosta, 1648-1815, 749-67, H.U Scupin, 1815 to the First World War, 767-93, W.G.Grewe, The
First World War to the Second World War, 839-49; O.Kimmininch, Since the Second World War, 849-61.

[28] Charles Henry Butler, The treaty making power of the United States, Volume 1, (1902, The Banks Law Pub Co.)
[29]
Nikolay,
Starikov.
"When
Did
WWII
Start?".
russianthought.com.
http://russianthought.com/starikov_when_did_world_war_ii_start.html. Retrieved 2010-02-03.

[30] "Australia Declares War on Japan". ibiblio. http://www.ibiblio.org/pha/timeline/411209awp.html. Retrieved 2009-1003.

[31]

"The

Kingdom

of

The

Netherlands

Declares

War

with

Japan".

ibiblio.

2007.

http://www.ibiblio.org/pha/policy/1941/411208c.html. Retrieved 2009-10-03.

[32] Kort, M ichael (2001). The Columbia Guide to the Cold War. Columbia University Press. pp. 3.
[33] Geiger, Till (2004). Britain and the Economic Problem of the Cold War. Ashgate Publishing. pp. 7.
[34] Allott, P., Eunomia: New Order for a New World, 1st edn. (Oxford University Press, 1990).
[35] See Generally R v Bow Street M etropolitan Stipendiary M agistrate ex parte Pinochet (No. 3) [1999] 2 All ER 97;
Liangsiriprasert v. US [1990] 2 All ER 866; R v. West Yorkshire Coroner [1983] QB 335, 358; R. v. West Yorkshire
Coronoer, ex parte Smith [1983] QB 335, 358; Vishaka v. State of Rajasthan AIR 1997 SC 3011

[36] Article 39, Chapter VII, UN Charter

[37] ICJ, ICC, ICTY et.al.
[38] C. Cheshire and P. North, Private International Law, 13 Edn., London 1999
[39] P.D.Trooboff, The Growing Interaction between Private and Public International
th

Law, Hague Yearbook of

International Law 6 (1993), 107-14.

[40] H.Kolz, Unification and Harmonization of Laws EPIL 10 (1987) 513-18

[41] A. Dyer, Hague Conventions on Private International Law EPIL 11 (1995), 663-70;
[42] Sir Thomas Erskine Holland, Holland on Jurisprudence Principles and Techniques, 13

th

Edn., 2002 Universal Law

Publishing Co. Pvt. Ltd.

[43] CR 92/3 pp.11-12 UKM IL, 63 BYIL, 1992,p.722; See also UNSC Res 748, 31/3/1992
[44] See generally Virginia Gascn and Rodolfo Werner, CCAM LR and Antarctic Krill: Ecosystem M anagement around
the Great White Continent. The journal on Sustainable Development, law & Policy, Vol. VII, Issue 1; Howard I. Browman &
Konstantinos I. Stergiou, Politics and socio-economics of ecosystem-based management of marine resources, M arine
Ecology
Progress
Series,
September
16,
2005,
at
241296,
available
at
http://www.iwlearn.net/publications/misc/lmearticles.pdf/view ; James Cameron & Juli Abouchar, The Precautionary
Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 Boston College Intl
& Comp. L. Rev. 1 (1991); Perspectives on ecosystem-based approaches to the management of marine resources, M arine
Ecology Progress Series, JUNE 24, 2004, at 269303, available at www.seaaroundus.org/Journal/ Zeller&Paulyresourcepolicy.pdf

[45] See generally Carl Q. Christol, International Liability for Damage Caused by Space Objects, 74 Am J Intl L 346
[46] See generally Colleen Driscoll Sullivan, The Prevention of An Arms Race in Outer Space: An Emerging Principle of
International Law, 4 Temp. Intl & Comp. L.J 211 (1980); P.K.M enon, The United Nations Efforts to Outlaw the Arms Race
in Outer Space, 2 Sri Lanka J. Intl L 183 (1990)

[47] See generally D.Brown, Use of Force against Terrorism after September 11th, 2001 in State Responsibility, Self
619

Defense and other Responses, Cardozo Journal of International and Comparative Law, 2004 (11) p.11.

[48]

Rene Vark, State Responsibility for Private Armed Groups in the Context of Terrorism,
www.juridica.ee/get_doc.php?id=1026 ;
Bassiouni, Remarks on the Panel on International Procedures for the
Apprehension and Rendition of Fugitive Offenders, American Social International Law Procedure 274, 277 (1980); Beckett,
Criminal Jurisdiction over foreigners, 8 British Yearbook of International Law 1927, p.108;
E.D.D, The "Hot Trail"
into M exico and Extradition Analogies M ichigan Law Review,Vol.20, No.5 (M ar.,1922), pp.536-537

[49] Aaron D. Buzawa, Cruising with Terrorism: Jurisdictional Challenges to the Control of Terrorism in the Cruising
Industry, 32 Tulane M arch Law Journal 181, 185-86 (2007);
D.Brown, Use of Force against Terrorism after
September 11th, 2001 in State Responsibility, Self Defense and other Responses, Cardozo Journal of International and
Comparative Law, 2004 (11) p.11; Detlev F. Vagts, Which Courts Should Try Persons Accused of Terrorism. 14 European
Journal of International Law 2003 (313);

[50] Duncan French, Sustainable Development and the 1991 Madrid Protocol to the 1959 Antarctic Treaty: The Primacy of
Protection in a Particularly Sensitive Environment, 2:3 Journal of International Wildlife Law & Policy (1999), 291; James
Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the
Global Environment, 14 Boston College Intl & Comp. L. Rev. 1 (1991).

[51] See generally Steven R. Donziger, Rainforest Chernobyl: Litigating Indigenous Rights and the Environment in Latin
America 11 No. 2 Hum. Rts. Brief 1 (2004); Paul M . Stookes, A Practical Approach to Environmental Law [Oxford
University Press, 2006];
Dinah Shelton, The Links Between International Human Rights Guarantees and
Environmental Protection, University of Chicago, Center for International Studies, April 16, 2004

[52]M alcolm M . Shaw,International Law (Cambridge: Cambridge University Press, 2005), 43

[53] See G. Schwarzenberger and E.D. Brown, A Manual of International Law, (6 Edition, London) 1976 pp.9-12; H.
th

Yalem, The Concept of World Order, 29 YBWA, 1975 and I. Pogany, The Legal Foundations of World Order, 37 YBWA,
1983 p.277

[54] Harris CM IL, 23-66,; Restatement (Third), Vol.1, paras 102-3, 24-39; C.Dominice, M ethodology of International
Law, EPIL 7 (1984), 334 et seq.; R.M onaco, Sources of International Law, 424; B.Simma/P.Aston, The Sources of Human
Rights Law: Custom, Jus Cogens and General principles, AYIL 12 (1988/9), 82-108; C.Sepulveda, M ethods and Procedures
for the Creation of Legal Norms in the International System of States: An Inquiry into the Progressive Development of
International Law in the Present Era, GYIL 33 (1990), 432; O. Schachter, International law in Theory and Practice, 1991,
Chapter III; E. Frangou-Ikonomidou (ed.), Sources of International Law, 1992; U. Fastenrath, Relative Normativity in
International Law, EJIL 4 (1993), 305-40; G.Tunkin, Is General International Law Customary Only? Ibid, 534-41.

[55] H.L.A. Hart, The Concept of Law, 1961, 246-7

[56] R.Y.Jennings, An International Lawyer Takes Stock ICLQ 39 (1990), 513-29, 514.
[57] Public International Law- A Current Bibliography of Books and Articles, published regularly by the M ax Planck
Institute for Comparative Public Law and International Law in Heildelberg, which evaluates over 1400 journals, in additions
to other collected sources.

[58]

O.Schachter, The Nature and Process of Legal Development in International Society, in

R.St.J.M acdonald/D.M .Johnston (eds.), The Structure and Process of International Law, 1983, 745-808; G.M .Danilenko,
Law-Making in the International Community, 1993; L.Skubiszewski, International Legislation, EPIL II (1995), 1255-62.

[59] M . M endelson, The International Court of Justice and the Sources of International Law, in V.Lowe/M .Fitzmaurice
(eds.), Fifty Years of the International Court of Justice, 1996, 63-89

[60] Charles De Visscher: De lequite dans le reglement arbitral ou judicaire des litiges de droit international public, Paris
1972, pp.17-26

[61] Article 38 (1) (a), Statute of the ICJ

[62]Peter M alanczuk, M ichael Barton Akehurst, Akehursts Modern Introduction to International Law, p.37
[63] V. De Visscher, Problemes d interpretation judicaire en droit International Public, 1953, 128 et seq.
[64] North Sea Continental Shelf Cases, ICJ Reports, 1969, p.41, ILR p.71
[65] Nicaragua Case
[66] Article 38(1)(b)
[67] Article 92 reads thus: The Court, whose function is to decide in accordance with international law such disputes as
620

are submitted to it, shall apply...international custom, as evidence of a general practice accepted as law.

[68]

M ilitary and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) M erits,
Judgment, I.C.J. Reports 1986, p. 14.

[69] See Rosenne, Practice and Methods of International Law, p.55

[70] M alcolm Shaw, International Law, pp.84-9
[71] Anthony Aust, Limping Treaties: Lessons from M ultilateral Treaty-making (2003) NILR 243, at 248-51.
[72] West Rand Central Gold M ining Company Ltd. v. R. (1905) 2 KB 291
[73] North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v
Netherlands) [1969] ICJ Reports 4 at 43

[74] Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or Use
by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226.

[75] Portugal v. India, ICJ Rep (1960) p.6

[76] Shaw, p.71
[77] UK v. Norway, ICJ Rep 1951, 116
[78] ILM 35 (1996) 830 para 96
[79] Anglo Norwegian Fisheries Case, UK v. Norway, ICJ Rep 1951, 116
[80] Nicaragua v. USA
[81] See Bin Cheng, UN Resolutions
[82] M ethode d Interpretation et Sources en Droit Prive Positif, 1899, para 110.
[83] L.D.Paul, Comity in International Law, Harvard International Law Journal 32 (1991)
[84] Peter M alanczuk, M ichael Barton Akehurst, Akehurst's modern introduction to international law, Routledge, 1997,
p.44

[85] Third Restatement, vol. 1, para 101

[86] W.Karl, Protest, EPIL 9 (1986), 320-2
[87] North Sea Continental Shelf Cases ICJ Rep (1979) p.3
[88] Ibid, p.42
[89] M . Cherif Bassiouni. (Autumn 1996) "International Crimes: Jus Cogens and Obligatio Erga Omnes'." Law and
Contemporary Problems. Vol. 59, No. 4, Pg. 68.

[90] UN Charter, A.2(4)

[91] Nicaragua v. US ICJ Reports, 1986, pp.14, 102; 76 ILR pp.349, 436; Legality of the Threat or Use of Nuclear
Weapons Advisory Opinion, ICJ Reports, 1996, para 70; 35 ILM 1996 pp.809 and 826

[92] Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law
Reports 213 (2002)

[93] Ibid
[94] M arc Bossuyt en Jan Wouters (2005): Grondlijnen van internationaal recht, Intersentia, Antwerpen enz., p. 92.
[95] Belgium v Spain (Second Phase) ICJ Rep 1970 3 at paragraph 33
[96] North Sea Continental Shelf Cases, ICJ Rep 1969 pp.3, 97, 182, 248
[97] El Salvador/Honduras case, ICJ Reports 1992 pp.351, 601; 97 ILR pp.266, 517
[98] Gulf of M aine case, 71 ILR p.74
[99] Gibbon, I. C., "The Scope of Acquiescence in International Law", (1954) 31 British Yearbook of International Law
147

[100] Anglo Norwegian Fisheries Case, ICJ Reports 1951 p.116; 18 ILR p.86
[101] See Persistent Objector, below
621

[102] See above, p.34

[103] Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277
[104] Anglo Norwegian Fisheries Case, UK v. Norway, ICJ Rep 1951, 116
[105] Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International
Law 26 Harvard International Law Journal 457, 459-463 (1985)

[106] Peter M alanczuk, M ichael Barton Akehurst, Akehurst's modern introduction to international law, Routledge, 1997,
p.43

[107] Tunkin, Theory of International Law, p.129; T.Stein, The Approach of the Different Drummer: The Principle of
the Persistent Objector in International Law 26 Harvard International Law Journal, 1985, p.457 and J. Charney, The
Persistent Objector Rule and the Development of Customary International Law 56 BYIL 1985 p.1

[108]

Dominguez v. United States, Inter-American Commission on Human Rights: Report No.62/02, M erits case
12.285(2002)- www.cidh.org/annualrep/2002eng/USA.12285.htm; Curtis Bradley, Juvenile Death Penalty and International
Law 52 Duke LJ 485, 516-32 (2002); Ian Brownlie, Principles of Public International Law, Oxford, 5th edn., 1998, p.10

[109] See Clean State Doctrine, Chapter on State Succession, p.

[110] Lynn Loschin, The Persistent Objector and Customary Human Rights Law: A Proposed Analytical Framework, 2
UC Davis Journal of International Law and Policy 147, 150 and 151 (1996)

[111] M ark E. Villiger, Customary International Law and Treaties,Revised 2 ed., 1997, p.36
[112] H. Gros Espiel, La Doctrine du Droit International en Amerique Latine avant
nd

la Premiere Conference

Panamericane 3 Journal of History of International Law, 2001, p.1

[113] Grant, Cedric. "Equity in Third World Relations: a third world perspective." International Affairs 71, 3 (1995), 567587

[114] Claim of Honduras in the El Salvador/Honduras case, ICJ Reports, 1992, pp.351, 597; 97 ILR pp.266, 513;
Eritrea/Yemen (M aritime Delimitation) case 119 ILR pp.417, 448

[115] The Asylum Case, ICJ Reports 1950 pp.276; 17 ILR p.284
[116] ICJ Reports 1960 p.6; 31 ILR p.23
[117] Cohen-Jonathan la Coutume Locale
[118] P. Weil, The Court cannot Conclude Definitively? Non Liquet Revisited 36 Columbia Journal of Transnational
Law, 1997, p.109

[119] Article 38(1)(c)

[120] J.G. Stone, Of Law and Nations, London, 1974, Chapter 3; H.Lauterpacht, Some observations on the Prohinition
of Non-Liquet and the Completeness of Legal Symbolae Verzijil, 1958, p.196; H. Thirlway, The Law and Procedure of the
ICJ BYIL 1988 p.76

[121] PCIJ Series A, No.17 1928, p.29; 4 AD p.258

[122] ICJ Reports, 1949, pp.4, 18; 16 AD pp.155, 157
[123] Ibid. See also the Administrative Tribunal Case, ICJ Reports, 1954, p.47; 21 ILR p.310; Laguna del Desiesto
(Argentina/Chile) case 113 ILR pp.1, 43

[124] Temple of Preah Vihar case, ICJ Reports 1962, pp.6,23,31 & 32; 33 ILR pp.48, 62, 69-70
[125] AM CO v. The Republic of Indonesia 89 ILR pp.366, 504
[126] German Interests in Polish Upper Silesia case, PCIJ Series A, No.7, 1926, p.22; Starett Housing Corporation v.
Iran, 85 ILR p.34; the Sheffield claim, 5 AD p.179 and AM CO v. The Republic of Indonesia 89 ILR pp.366, 496

[127] Oppenheims International Law, p.38; See E. Zoller, Bonne Foi en Droit International Public, Paris, 2000; Thirlway,
Law and Procedure of the ICJ (Part One), pp.3, 7ff and G. Fitzmaurice, The Law and Procedure of the ICJ, Cambridge,
1986, vol. 1., p.183 and vol. II, p.609

[128] ICJ Reports, 1974, pp.253, 267; 57 ILR pp.398, 412

[129] The Reintroduction of the Death Penalty in Peru case, 16 Human Rights Law Journal, 1995 pp.9, 13
622

[130] The Border and Transborder Armed Actions case, (Nicaragua v. Honduras) ICJ Reports, 1988 p.105; 84 ILR p.218
[131] PCIJ Series A/B, No.70, pp.73, 77; 8 AD, pp.444, 450
[132] North Sea Continental Shelf Cases, ICJ Reports, 1969, pp.3, 53; 41 ILR pp.29, 83; Barcelona Traction case, ICJ
Reports, 1970, pp.3; 46 ILR p.178; Burkina Faso v. M ali ICJ Reports, 1986, pp.554, 631-633; 80 ILR pp.459, 532-535.

[133] ICJ Reports 1951 p.116; 18 ILR p.86

[134] ICJ Reports, 1949, p.174; 16 AD, p.318
[135] ICJ Reports, 1951, p.15; 18 ILR p.364
[136] 1955 ICJ 4
[137] PCIJ, Series A, No.10, 1927 p.18; 4 AD p.5
[138] J.B.M oore, International Arbitration, New York, 1898, vol. I, p.653
[139] Thirty Hogsheads of Sugar, Bentzon v. Boyle 9 Cranch 191 (1815) Pacquette Habana 175 US 677 (1900) and The
Scotia Case, 14 Wallace 170 (1871)

[140] 175 US (1900) 677 at 700-1

[141] Shaw, p.106
[142] Eg: Gidel on the Law of Sea, Droit International Publi de la M er, Chateauroux, 3 volumes, 1932-4
[143] Taida Begic, Applicable Law in International Investment Disputes 219-230 (Eleven Intl 2005).
[144] Gilbert Castille v Commission of the European Communities, Combined cases 173/82, 157/83, 186/84, 1986 ECR
497 (Feb 6, 1986)

[145] O.Y. Asamoah, The Legal Significance of the Declarations of the UN, The Hague, 1966; D. Johnson , The effect of
Resolutions of the General Assembly of the UN 32 BYIL 1955-1956, p.97; J. Castenada, Legal Effects of UN Resolutions,
NY 1969, and R.A. Falk, On the Quasi-Legislative Competence of the General Assembly, 60 AJIL 1966, p.782

[146] Nicaragua Case, ICJ Reports 1986 pp.14, 99-100; 76 ILR pp.349, 433-434, where the Court drew attention to
Resolution 2625 (XXV) as being an important source evidencing opinio juris

[147] Virally, Sources, pp.154-6; Brownlie, Principles, pp.637-640; W. Fiedler, Unilateral Acts in International Law
in Encyclopedia of Public International Law, (ed. R.Bernhardt), Amsterdam, 2000, vol. IV, p.1018

[148] ILC Report, A/57/10, 2002, p.245

[149] League of Nations, Official Journal, Special Supplement, No.21, p.10
[150] Convention on certain questions relating to the Conflict of Nationality Laws, League of Nations Treaty Series, vol.
179, p.89; Protocol relating to military obligations in certain cases of double nationality, League of Nations Treaty Series, vol.
178, p.227; Protocol relating to a certain case of statelessness, League of Nations Treaty Series, col.179, p.115; Special
Protocol concerning statelessness, league of Nations, C.27 M .16 1931 V

[151] League of Nations, Official Journal, Special Supplement, No.92, p.9

[152] Official Records of the UN GA, Second Session, Sixth Committee, Annex 1
[153] Yearbook of the ILC, 1979, vol. II, (Part One), document A/CN.4/325, para 102
[154] ICJ Reports, 1997, p.7; 116 ILR p.1
[155] www.icj-cji.org/icjwww/ipresscom/SPEECHES/Ga1997e.htm
[156] Shaw, M alcolm N (2003). International Law. Cambridge University Press; 5 edition. pp. 12.
[157] M alanczuck, 1997, p.63-71
[158] James Atkin, Baron Atkin, in M .Akehurst, Modern Introduction to International Law, Harper Collins, London,
p.45

[159] Pieter Kooijmans, International Publiekrecht in Vogelvlucht, Wolters-Nordhoff, Groningen, 1994, p.84
[160] Oppenheims International Law, p.53
[161] Kelsen, Principles, 555-559; Kelsen, General Theory of Law and State, Cambridge, 1945, pp.363-380
623

[162] G.J. Wiarda, in Antonio Cassesse, International Law in a Divided World, Clarendon Press, Oxford, 1992, p.17
[163] P. Kooijmans, International Publiekrecht in Vogelvlucht, Wolters-Nordhoff, Groningen, 1994, p.82
[164] Ibid, p.83
[165] Lauterpacht, International Law; See also Lauterpacht, International Law and Human Rights, London 1950
[166] G.Fitzmaurice, The General Principles of International Law Considered from the standpoint of the Rule of Law
92 HR 1957 11 pp.5, 70-80

[167] M . Akehurst, A Modern Approach to International Law, London 1977, George Allen Publishing Ltd., p.64
[168] Article 27, VCLT
[169] Considered in the light of the status of municipal law in International Law, in the Cameroon v. Nigeria case, ICJ
Reports, 2002, para 265

[170] J.B. M oore, International Arbitrations, NY, 1898, vol. I, pp.498, 653
[171] Polish Nationals in Danzig case, PCIJ, Series A/B, No.44, pp.21, 24
[172] Applicability of Obligations to Arbitrate case, ICJ Reports, 1988 pp.12,34; 82 ILR pp.225,252
[173] Lockerbie case ICJ Reports, 1992, pp.3, 32; 94 ILR pp.478, 515
[174] Elttronica Sicula SpA (ELSI) case ICJ Reports, 1989, pp.15, 73-74; 84 ILR pp.311, 379-380
[175] PCIJ Series A, No.20; 5 AD 466
[176] Barcelona Traction case, ICJ Reports, 1970, p.3; 46 ILR p.178
[177] Exchange of Greek and Turkish Population case, PCIJ Series B, No.10, pp.19-21; 3 AD 378; South West Africa
case- Justice M c Nairs Separate Opinion, ICJ Reports, 1970, pp.3, 66-7; 46 ILR pp. 178, 240-1; Separate and Dissenting
Opinion of President Cassese in the Endemonic case, 111 ILR pp.298, 387ff

[178] PCIJ, Ser. A., No. 6, 1925.

[179] Exchange of Greek and Turkish Population case, PCIJ Series B, No.10, p.20
[180] Furundzija case, 121 ILR pp.218, 248-249
[181] Blackstone, Commentaries, IV Chapter 5
[182] 91737) Cases t. Talbot 281
[183] (1764) 3 Burr. 1478
[184] (1876) 2 Ex. D. 63
[185] Holdsworth, Essays, pp. 263-236; W. Halsbury, Laws of England, 3 edn., London, 1968, vol. VII, p.264
[186] (1905) 2 KB 391
[187] Triquet v. Bath, (1764) 3 Burr. 1478
[188] (1906) 8 F. (J) 93
[189] (1939) AC 160; 9 AD p.264; See also Commercial Estates Co. of Egypt v. Board of Trade (1925) 1 KB 271, 295; 2
rd

AD p.423

[190] The Christina (1938) AC 485, 497; 9 AD p.250; In Re Piracy Jure Gentium (1934) AC 586, 588; 7 AD p.213
[191] (1977) 2 WLR 356; 64 ILR 111
[192] M aclaine Watson v. Dept. of Trade and Industry, (1988) 3 WLR 1033; 80 ILR p.49; Ex Parte Pinochet (2000) 1 AC
61, 98; 119 ILR pp.50, 87; Sandline v. Papua New Guinea 117 ILR pp.552, 560

[193] (1879) 4 PD 129

[194] Council of Civil Service Unions v. M inister for the Civil Service (1985) AC 374, 418; Rustomjee v. R. (1876) 2
QBD 69 and Lornho Exports v. ECGD (1996) 4 All ER 673; 108 ILR pp.596, 671

[195] R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-M ogg (1994) 2 WLR 115
[196] M aclaine Watson v. Department of Trade and Industry (1989) 3 All ER 523, 531; 81 ILR pp.671, 684; Lornho
624

Exports v. ECGD (1996) 4 All ER 673, 687; 108 ILR pp.596, 611

[197] (1989) 3 All ER 523, 544-545; 81 ILR p. 701

[198] M aclaine Watson v. Department of Trade and Industry (1989) 3 All ER 523, 531; 81 ILR pp.671, 688
[199] Lornho Exports v. ECGD (1996) 4 All ER 673; 108 ILR pp.596, 671
[200] Lord Woolf M R in Ex Parte Ahmed and Patel (1998) INLR 570, 584
[201] Evidence presented by the Foreign and Commonwealth office to the Royal Commission on the Reform of the
House of Lords, UKM IL 70 BYIL 1999 p.405

[202] H.Fox and C. Wikremasinghe, UK Implementation of UN Economic Sanctions 42 ICLQ, 1993, pp.945,959
[203] Wade and Philips, Constitutional and Administrative Law, p.304; International Agreements: Practice and Procedure
Guidance Notes, 1992, quoted in UKM IL 63 BYIL 1992 p.705.

[204] Garland v. British Rail Engineering Ltd. (1983) 2 AC 751, 93 ILR p.622
[205] Iraq and Kuwait (UN Sanctions) Orders, 1992 and 1993, SI 1992 No.1302 and SI 1993, No.1188; the Libya (UN
Sanctions) Orders 1992 and 1993, SI 1992 Nos. 973, and 975 and SI 1993 No.2807

[206] Buchanan v. Babko (1978) AC 141; Fothergill v. M onarch Airlines (1981) AC 251; 74 ILR p.648; Wahda Bank v.
Arab Bank Plc, Times Law Reports 16th December, 1992

[207] [1997] A.C. 430

[208] (1997) 1 All ER 502, 512
[209] R. v. A. (2001) 2 WLR 1546
[210] Pickstone v. Freemans (1988) 3 WLR 265; Lister v. Forth Dry Dock Engineering (1989) 1 All ER 1194
[211] 99 L Ed. 2d. 333, 345-7 (1988); 121 ILR p.551
[212] 175 US 677 (1900)
[213] Cook v. US 288 US 102 (1933); 6 AD p.3; US v. Claus 63 F. Supp 433 (1944)
[214] US v. Belmont 301 US 324, 331, 573 Ct. 758, 761 (1937)
[215] 859 F 2d. 929 (1988); See also Kadic v. Karadzic 70 F. 3d 232, 246 (1995)
[216] Brown v. US 12 US (8 Cranch) 110, 128 (1814), Whitney v. Robertson 124 US 190, 194 (1988); Rodriguez
Fernandez v. Wilkinson 654 F.2d. 1382 (1981); Klinghoffer v. SNC Achille Lauro 739 F. Supp 854 (1990)

[217] The Reagan Case 859 F. 2d. 929

[218] US Court of Criminal Appeals, Oklahoma, Case No. PCD-2001-1011,2002
[219] 5 F. 2d. 838 (1925)
[220] See also M acleod v. US 229 US 416 (1913); Littlejohn & Co. v. US 270 US 215 (1926); 3 AD 483
[221] 630 F. 2d. 876 (1980); 77 ILR p.169
[222] No. CU. 82-1772- RM T (M CS)
[223] Tel-Oren v. Libyan Arab Republic 517 F. Supp. 542 (1981)
[224] 70 F. 3d 232, 246 (1995)
[225] 315 US 203 (1942)
[226] American Law Institute, Restatement Third of Foreign Relations Law of the United States, 303, Comment e.
[227] Y. Iwasawa, The Doctrine of Self-Executing Treaties in the US: A Critical Analysis 26 Va JIL 1986 p.635; J.
Paust, Self-Executing Treaties 82 AJIL 1986, p.635; T.Burgenthal, Self Executing and Non-Self Executing Treaties in
National and International Law, 235 HR 1992 IV p.303

[228] 112 US 580 (1884)

[229] 38 Cal (2d) 718 (1952)
[230] 470 F. 2d. 461, 466-467 (1972); See also Breard v. Greene 523 US 371, 376 (1998) and Havana Club Holding Inc. v.
Galleon SA 974 F. Supp 302 (SDNY 1997) affd 203 F.3d (2d. Cir 2000)

625

[231] G. Hackworth, Digest of International Law, Washington, 1940-4, vol V, pp.185-6 and 324-5
[232] M urray v. Schoner Charming Betsy 6 US (2 Cranch) 64; Weinberger v. Rossi 456 US 25 (1982) and Cook v. USA
288 US 102 (1933)

[233] Whitney v. Robertson 124 US 190 (1888)

[234] 695 F. Supp. 1456 (1988); See also Advisory Opinion in the Applicability of the Obligation to arbitrate case, ICJ
Reports, 1988 p.12; 82 ILR p.225

[235] 523 US 371, 376 (1998)

[236] ICJ Reports 1998 p.248; 118 ILR p.1
[237] (1998) 161 DLR (4 ) 385, 399; 115 ILR p.536
[238] (1937) AC 326; 8 AD 41
[239] Australia: Potter v. BHP Co. Ltd (1906) 3 CLR 479, 495, 506-7 and 510; Wright v. Cantrell (1943) 44 SR (NSW)
th

45; Polites v. Commonwealth (1945) 70 CLR 60; Chow Hung Ching v. R (1948) 77 CLR 449. New Zealand: M arine Steel
Ltd. v. Govt. of the M arshall Islands (1981) 2 NZLR 1; Government of Pitcairn & Associated Islands v. Sutton (1995) 1
NZLR 426; Rajan v. M inister of Immigration (1996) 3 NZLR 543, 551; Wellington District Legal Services v. Tangoria (1998)
1 NZLR 129, 137

[240]

(1995) 128 ALR 353; 104 ILR 466; See also Dietrich v. The Queen, (1992) 177 CLR 292, 305; Coe v.

Commonwealth of Australia (1993) 118 ALR 193, 200-1; 118 ILR 322; Kruger v. Commonwealth of Australia, (1997) 146
ALR 126, 161; 118 ILR p.371

[241] Simsek v. M acphere (1982) 148 CLR 636, 641-2

[242] Chung Kheung Lin v. M inister for Immigration (1992) 176 CLR 1, 38; Kruger v. Commonwealth of Australia,
(1997) 146 ALR 126, 161; 118 ILR p.371

[243] Ex Parte Brind (1991) 1 AC 696 at 748; 85 ILR p.29

[244] Parking Privileges for Diplomats case, 70 ILR p.396
[245] D. P. OConnell, International Law, 2 Edition, London, 1970 vol.I, pp.71-76
[246] Oppenheims International Law, p.69; H. Schermers, The Effect of Treaties in Domestic Law (eds. F. Jacobs and S.
nd

Roberts), Leiden, 1987, p.109

[247] Handelskewerij GJ Bier BV v. M ines de Potasse d Alsace SA 11 Netherlands YIL, 1980, p.326
[248] Title VI of the 1958 French Constitution; Nguyen Quoc Dinh et. al. Droit International Public, pp.231ff; P.M .
Dupuy, Droit International Public, 4th ed., Paris, 1998, pp.369ff

[249] OConnell, International Law, pp.65-68; Rousseau, Droit International Public and Peaslee, Constitutions, vol. III,
p.312

[250] Cafes Jacques Vabre case, 16 Common M arket Law Review, 1975, p.336; In Re Nicolo, 84 AJIL 1990, p.765; 93
ILR p.286; In Re Treaty on the European Union 93 ILR p.337; Ligue International Centre le Racisme et l Anti Semitisme,
AFDL, 1993, p.963 and AFDI, 1994, pp.963ff

[251] Costa v. ENEL case (6/64) ECR 585

[252] Internationale Handelsgesellschaft v. Einfuhrund Vorratsstelle fur Getreide and Futtermittel (1970) ECR 1125
[253] S.231(2)S.82(1)(i)
[254] S.82(1)(i)
[255] Eichman v. Attorney General, Govt. of Israel (1962) 136 ILR 277
[256] W.E.Butler, The Law of Treaties in Russia and the Commonwealth of Independent States, Cambridge, 2002 at p.36
[257] S. Oda, The Practice of Japan in International Law, 1961-1970, Leiden, 1982; Y. Iwasawa, The Relationship
between International Law and National Law: Japanese experiences 64 BYIL 1993 p.333

[258] Y. Iwasawa, The Relationship between International Law and National Law: Japanese experiences 64 BYIL 1993
p.333, at 345

[259] Ying Tao, Recognize the True Face of Bourgeoisic International Law from a Few Basic Concepts KCWTYC
626

No.1; 47-49 (1960) in Jerome Alan Cohen and Hungdah Chin, Peoples China and International Law, (Princeton, New Jersey,
1974) at 101 and 104

[260] M .K. Nawaz, International Law on the Contemporary Practice in India, Proc ASIL April 25027 (1963) 275, at
278

[261] AIR 1954 SC 517

[262] Shiv Kumar Sharma v. The Union of India and Others AIR 1969 Delhi 64
[263] Kesavananda Bharathi vs. State of Kerala, (1973) Supp. SCR 1
[264] Samsher Singh v. State of Punjab, AIR 1974 SC 2192
[265] Article 73 and 162 of the Indian Constitution
[266] AIR 1997 SC 3011
[267] AIR 1980 SC 470
[268] AIR 1976 SC 1207
[269] AIR 1996 SC 2715
[270] M ann, Foreign Affairs, ch.4; C. Collins, Foreign Relations and the Judiciary 51 ICLQ (2002) 485
[271] Shaw, p. 163
[272] Wade and Phillips, Constitutional and Administrative Law, pp.299-303; J.B.M oore, Acts of State in English Law,
NY, 1906; M . Zander, The Act of State Doctrine 53 AJIL 1959, p.826

[273] Buttes Gas and Oil Co. v. Hammer (#3) (1982) AC 888; 64 ILR p.331
[274] R. v. Secretary of State for Foreign and Commonwealth Affairs, ex Parte Pirbhai 107 ILR 462
[275] Empresa Exportadora de Azucar v. Industria Azucarera Nacional SA (1983) 2 LLR 171, 194-5.
[276] R. Dias, Jurisprudence, 5 ed., London 1985, Chapter 12
[277] M . Sorensen, Principles de Droit International Public 101 HR 1960, pp.5, 127; H. M osler, The International
th

Society as a Legal Community, Dordrecht, 1980, p.32

[278] Verzijil, International Law, p.3

[279] The Third Restatement of Foreign Relations, para 201 (1987).
[280] Convention on the Rights and Duties of States, Dec. 26, 1933, art. 1, 165 L.N.T.S. 19, reprinted in 28 Am. J. Int'L
L. 75 (Supp. 1934) [hereinafter M ontevideo Convention].

[281] Thomas D. Grant, Defining Statehood: the M ontevideo Convention and Its Discontents, 37 Colum. J. TransnatL
L. 403, 405-22, 435-47 (1999)

[282] Christian Tomuschat, International Law: Ensuring the Survival of M ankind on the Eve of a New Century, in 281
Hague Academy of International Law Collected Courses 9, 96 (1999)

[283] Lauterpacht, International Law, p.489

[284] Verzijil, International Law, pp.17-43; Lauterpacht,

International Law, p.490-500; Western Sahara case, ICJ

Reports, 1975 pp.12, 39; 59 ILR pp.30, 56

[285] Break-up of the Soviet Union, the Socialist Federal Republic of Yugoslavia and Czechoslovakia
[286] The Arbitration Commission of the European Conference on Yugoslavia, in Opinion No.1, EC 718 (1991)
[287] Opinion No.1, 92 ILR pp.162, 165
[288] For instance, Nauru with about 10,000 people, and Tuvalu with about 12,000 people.
[289] India and Pakistan in the context of the Kashmir issue still have a dispute as regards boundary, but are deemed
states in International Law.

[290] Keesings Record of World Events, p.36438 (1989); See UNGA Res 43/77
[291] North Sea Continental Shelf Cases, ICJ Reports, 1969, pp.3, 32
[292] Brownlie, Principles, p.71, H.Lauterpacht, Recognition in International Law, Cambridge, 1948, p.30
627

[293]

M eares, Richard (2008-02-18). "Serbia

http://www.reuters.com/article/idUSHAM 84253620080218.

charges

Kosovo

leaders

with

treason".

Reuters.

[294]

Congo Case, Higgins, Development, pp.162-164; C.Hoskyns, The Congo since Independence, Oxford 1965;
Western Sahara Case, ICJ Reports, 1975, pp.12, 43-44; 59 ILR pp.30, 60-1

[295] Aaland Islands case, 1920-LNOJ Sp. Supp. No.4, (1920) pp.8-9
[296] Austro German Customs Union Case, (1931) PCIJ, series A/B, No.41, pp.41, (Courts Opinion) and 57-58
(Separate Opinion of Judge Anzilloti); 6 AD pp.26, 28

[297] UKM IL 57 BYIL 1986, pp.507, 508

[298] Keesings Record of World Events, p.37299 (1990)
[299] INOJ Supp. No.3, 1920 pp.5-6 and Doc 37/21/68/106 [VII] pp.22-3
[300] Resolution 1514 (XV)
[301] Later discussed in Friendly Relations Declaration, 1970
[302] Keesings Contemporary Archives, pp.17594-5 and 17639-40
[303] UNGA Resolution No.2024 (XX), 2151 (XXI); UNSC Resolution 216 (1965) and 217 (1966)
[304] UNGA Resolution No.3061 (XXVIII)
[305] Namibia case ICJ Reports 1971 p.16; 49 ILR p.3; Western Sahara case, ICJ Reports 1975 p.12; 59 ILR p.30;
Portugal v. Australia ICJ Reports 1995 pp.90, 102; 105 ILR 226

[306] 31 ILM 1992 pp.1486-1487 and 92 ILR 173

[307] UNSC Res 751 (1992), 767 (1992), 794 (1992); 814 (1993); 837 (1993); 865 (1993); 885 (1993) and 886 (1993)
[308] Keesings Record of World Events, p.37470 (1990)
[309] L. Kherad, La Reconnoissance Internationale des Etats Blates, RGDIP, 1992, p.843
[310] "Pakistan". Library of Congress. http://lcweb2.loc.gov/frd/cs/pktoc.html.
[311] T.M .Franck, The Power of Legitimacy among Nations, Oxford, 1990, pp.153ff
[312] Yearbook of the ILC, 1949, p.286
[313] PCIJ Series A/B, No.41, 1931; 6 AD p.26
[314] See also North Atlantic Coast Fisheries Case (1910), the Wimbledon case PCIJ Series A, No.1, 1923, p.25
[315] ICJ Reports, 1986, pp.14, 135
[316] ICJ Reports, 1996, pp.226, 247
[317] Corfu Channel Case, ICJ Reports, 1949 pp.4, 35
[318] Tunkin, Thoery, pp.69-75; B.Ramondo, Peaceful Co-existence, Baltimore, 1967
[319] UNGA Res 1236 (XII), UNGA Res 1301 (XIII); Yearbook of the UN 1957 pp. 105-9
[320] Robert Deschamps, M ichel Quvit, Robert Tollet, Vers une rforme de type confdral de l'tat belge dans le cadre
du maintien de l'union montaire, in Wallonie 84, n.2, pp. 95-111

[321] Shaw, p.194

[322] Rights of Nationals of the USA in M orocco, ICJ Reports, 1952, pp.176, 188; 19 ILR pp.255, 263
[323] Cameroon v. Nigeria, ICJ Reports, 2002, para 205-209; Island of Palmas case 2RIAA pp.826, 858-859
[324] A.22 of the Covenant of the League of Nations; See also the International Status of South West Africa, ICJ Reports
1950 pp.128, 132; 17 ILR p.47; the Namibia case ICJ Reports 1971 pp.16, 28-9; 49 ILR pp.2, 18-19; Certain Phosphate
Lands in Nauru, ICJ Reports 1992, pp.240, 256; 97 ILR pp.1, 23 and Cameroon v. Nigeria ICJ Reports, 2002, para 212.

[325] Certain Phosphate Lands in Nauru, ICJ Reports, 1992, pp.240, 257; 97 ILR pp.1, 24.
[326] O. M c Henry, M icronesia: Trust Betrayed, NY, 1970; DUSPIL 1973 pp.56-67
[327] ICJ s Advisory Opinion on the International Status of South West Africa, ICJ Reports, 1950 pp.128, 143-144
628

[328] Brownlie, Principles, p.107; Whiteman, Digest, p.333, and I.D.Hendry and M .C.Wood, The Legal Status of Berlin,
Cambridge, 19987

[329] 12 AD p.16; Kunstammlungen zu Weiner v. Elicofon 94 ILR p.135; Crawford, Creation of Statehood, pp.273-281
[330] J.E.S. Fawcett, Annual Survey of Commonwealth Law, London, 1967, pp.709-711
[331] J. Lipott, The Commonwealth of Independent States as an Economic and Legal Community 39 German Yearbook
of International Law, 1996, p.334

[332] A. Orakhelashvili, The Position of the Individual in International Law, 31 California Western International Law
Journal (2001) 241-276

[333] Grotius, De Jure Praedae Commentarius, 1604, cited in Daes, Individuals Duties, p.44, and Lauterpacht, Human
Rights, pp.9,70 and 74

[334] Nottebohm case, ICJ Reports, 1955, pp.4, 22-23

[335] US v. Noriega 746 F. Supp 1506, 1533 (1990); 99 ILR 143, p.175
[336] Whiteman, Digest, vol. I, p.39
[337] PCIJ Series B No.15 (1928); 4 AD p.287
[338] Advisory Opinion of the IACHR in the Re-introduction of the Death penalty in the Peruvian Constitution Case,
16 HRLJ, 1995, pp.9, 14

[339] Bassiouni, Crimes Against Humanity, pp.193-196

[340] See A.228 of the Treaty of Versailles 1919
[341] Ibid, A.227
[342] 41 AJIL 220; Ian Brownlie, International Law and the Use of Force by States, Oxford 1963, p.167
[343] Resolution 96 (1)
[344] Article 49 of the First Convention, Article 50 of the Second Convention, Article 129 of the Third Convention and
Article 146 of the Fourth Convention.

[345] Special Section on the Iraqi War Crimes, 31 Va JIL, 1999, p.351
[346] A/49/10 pp.43ff
[347] Reparation for Injuries Case, ICJ Reports 1949 p.174; the Interpretation of the Agreement of 25/3/1951 between
the WHO and Egypt case, ICJ Reports 1980 pp.73, 89-90

[348] J.A.Pastor Ridruejo, Cruso de Derecho International Publico y Organizaciones Internacionales, Tecnos

2003,

p.186

[349] A. Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press 2006, p.28
[350] N. Carrilo Santarelli, Los Retos del Jus Cogens: La transformacion de los Derechos Internacional y Colombiano
gracias al Jus Cogens Internacional. Tesis de grado, Bogota, Universidad Externado de Columbia 2005

[351] Casebeer, M aj William, (USAF, USAF Academy), and Thomas, M aj Troy Thomas, USAF (1st Fighter Wing IN.)
(December 2002). "Deterring Violent Non-State Actors in the New M illenium". Strategic Insights I (10); Bartolomei, Jason ;
Casebeer, William ; Thomas, Troy (November 2004). "M odeling Violent Non-State Actors: A Summary of Concepts and
M ethods". IITA Research Publication, Information Series (Colorado: Institute for Information Technology Applications,
United States Air Force Academy)

[352]

Robert Araujo and John Lucal, Papal Diplomacy and the Quest for Peace, the Vatican and International
Organizations from the early years to the League of Nations, Sapienza Press (2004), p. 16. See also James Crawford, The
Creation of States in International Law, (1979) p. 154.

[353] Ian Brownlie, Principles of Public International Law, 4th ed. (1990) p. 65.
[354] Gaetano Arangio-Ruiz, Revue Belge de Droit International, 29 (1996) 354.
[355] Ian Brownlie, Principles of Public International Law, 4th ed. (1990) p. 65; See also M elnyk, Roman A., Vatican
Diplomacy at the United Nations: A History of Catholic Global Engagement, The Edwin M ellen Press, USA-UK, 2009.

[356]

Robert Araujo and John Lucal, Papal Diplomacy and the Quest for Peace, the Vatican and International

629

Organizations from the early years to the League of Nations, Sapienza Press (2004), pp. 4-5.

[357] Peter M alanczuk, M ichael Barton Akehurst, Akehurst's modern introduction to international law, p.104
[358] Res 2918 (XVII); 3247 (XXIX); 3237 (XXIX)
[359] H. Lauterpacht, Recognition in International Law, 1947; I. Brownlia, Recognition in Theory and Practice, in R.St.
J. M acdonald/D.M .Johnston (eds.) The Structure and Process of International Law, 1983, 627-642

[360] Thomas D. Grant, The recognition of states: law and practice in debate and evolution, Greenwood Publishing
Group, 1999, p.ix

[361] Article 1 of the Resolution adopted at Brussels on April 23, 1936, in 30 American Journal of International Law,
Supp, p.185 (1936)

[362] G. Schwarzenberger, International Law, vol. I, 3 ed., 1957 (Stevens & Sons Ltd., London) 1957, p.127
[363] L. Oppenheim, International Law, vol.1, 7 Ed. (Lauterpacht (ed.) Longmans, London) 1952, p.127
[364] See Article 1 of the M ontevideo Convention, 28 American Journal of International Law Supp, 75 (1935)
[365] R. Higgins, Development of International Law through the Political Organs of the United Nations,
rd

th

(Oxcord

University Press, London) 1963, pp.21-23

[366] Carl Zeiss Stiftung v. Rayner and Keeler (1967) AC 853; 43 ILR p.23; Gur Corporation v. Trust Bank of Africa
Lrd. (1986) 3 All ER 449; 75 ILR p.675

[367] Akehurst, p.83

[368] UNGA Res 3237 (XXIX), Nov 22, 1974
[369] UNGA Res 43/177
[370] 26 M arch, 1980, the erstwhile Foreign M inister of India (M r. P.V.Narasimha Rao) announced Indias decision to
th

accord full diplomatic recognition to the Office of PLO in India

[371] S. K. Verma, An Introduction to Public International Law, PHI Learning Pvt. Ltd., 2004, p.92
[372] L. Oppenheim, International Law, vol.1, 7 Ed. (Lauterpacht (ed.) Longmans, London) 1952, p.125
[373] H. Lauterpacht, Recognition in International Law, (Cambridge University Press) 1948 p.38; J.Crawford, The
th

Creation of States in International Law, Oxford, 1979, pp.17ff

[374] Die Lehre von den Staatenverbindungen (1882), pp. 92-99; Die rechtliche Natur der Staatenvertage (1880) p.48
[375] Triepel: Vereinbarung: Volkerrecht und Landesrecht (1899), p.102; Anzilotti, Cours de Droit International, p.160
[376] J.L. Brierly, The Law of Nations, 6 ed., (Clarendon Press, Oxford) 1963, p.138
[377] 62 American Journal of International Law 756 (1968)
[378] 1 RIAA 369 (1923)
[379] J.L Brierly, at p.139
[380] Article 9 of the Charter of the Organization of American States, 1948
[381] J.L.Brierly, The Law of Nations, 6 ed., Oxford1963, p.138; Ian Brownlie, Principles of Public International Law,
th

th

5th ed., Oxford, 1998, p.88; D.P. OConnell, International Law, 2nd ed., London 1970, vol. I, pp.128ff

[382] 39 Bulletin of the US Department of State 1958 p.385

[383] 39 Annuaire de LInstitut de Droit International, 1936, p.300
[384] Deutsche Continental Gas-Gesellschaft v. Polish State 5 AD p.11
[385] 92 ILR pp.162, 165; See also Loizidou v. Turkey (Preliminary Objections) Series A No.310, 1995, p.14; 103 ILR
p.621

[386] H. Lauterpacht, Recognition, pp.24, 55, 76-7

[387] 72 AJIL 337 (1978)
[388] N. S. Sisodia, Chitrapu Uday Bhaskar, Emerging India: security and foreign policy perspectives, Bibliophile South
Asia, 2005, p.275

630

[389] D.W.Greig, International Law, 2 ed., (1976) p.121

[390] Whiteman, Digest of International Law, vol.2, p.48
[391] Republic of China v. M erchants Fire Assurance Corporation, 30F (2d) 278 (1929)
[392] H. Lauterpacht, Recognition in International Law, (Cambridge University Press, Cambridge) 1948, p.405
[393] Whiteman, Digest of International Law, vol.2, p.50
[394] Luther v. Sagor, (1921) 3 KB at p.543
[395] D.P.OConnell, International Law, p.161
[396] Arantzazu M endi, (1939) AC 256; Bank of Ethiopia v. National Bank of Ligouri (1937) Ch 513
[397] 92 ILR pp.179, 181
[398] UKM IL, 63 BYIL 1992, p.645
[399] J. G. Starke, Introduction to International Law, 10 ed., (Butterworths, London) 1989, p.137
[400] (1948) ICJ Rep., p.57
[401] UN Doc. S/1466, SCOR, 5 Year Supp. (Jan-M ay, 1950); see 44 American Journal of International Law 549
nd

th

th

(1950)

[402] See Berlin Congress 1878. Britain, France, Italy and Germany made the recognition of Bulgaria, Serbia, Romania
and M ontenegro conditional on the non-imposition of religious disabilities on their subjects by the latter states.

[403] 31 Yale Law Journal 469 (1922)

[404] Section 21, British State Immunity Act, 1978
[405] (1924) AC 797 at p.823 (House of Lords)
[406] Re Al-Fin Corporations Patent 91970) Ch. 160; Reel v. Holder (1981) 1 WLR 1226 (CA); Adams v. Adams (1970)
3 All ER 572, however, forms an exception where a divorce decree granted in Rhodesia was not recognized as Rhodesia itself
was an unrecognized state as far as Britain was concerned.

[407] For instance, See Pueblo Case, 62 American Journal of International Law 756 (1968); Tinoco Arbitration 1 RIAA
369 (1923)

[408] Luthor v. Sagor (1921) 3 KB at p.543; Haile Salessie v. Cable and Wireless Ltd. (No.2) (1938) 54 TLR 1087
[409] Luther v. Sagor, (1921) 3 KB at p.543
[410] Re Al-Fin Corporations Patent 91970) Ch. 160; Reel v. Holder (1981) 1 WLR 1226 (CA); Adams v. Adams (1970)
3 All ER 572, however, forms an exception where a divorce decree granted in Rhodesia was not recognized as Rhodesia itself
was an unrecognized state as far as Britain was concerned.

[411] UNSC Res 276 (1970)

[412] (1971) ICJ Rep, p.16
[413] Tinoco Arbitration case, 1 RIAA 369 (1923)
[414] L.T. Galloway, Recognizing Foreign Governments: The Practice of the United States (1978) Forward, p.xi
[415] 485 HCD, Col. 2410
[416] 73 American Journal of International Law 277 (1979)
[417] See UK-Albania, 1946; UK-Libya 1984; UK-Argentina 1992; UK-Syria 1986; India-Pakistan, 1971
[418] India recognized the South African Government in November, 1993, by way of an agreement establishing
diplomatic relations. The Hindustan Times, Nov.23, 1993, p.1.

[419] J.L.Brierly, The Law of Nations, 6 ed., (Clarendon Press, Oxford) 1963, p.141
[420] J. Crawford, The ILCs Articles on State Responsibility, Cambridge, 2002; R.B.Lillich, Duties of States Regarding
th

the Civil Rights of Aliens 161 HR 1978 p.329

[421] Yearbook of International Law Commission, 1973, vol. II, pp.169-170

631

[422] Yearbook of International Law Commission, 1975, vol. II, part 2., pp. 55-59
[423] ILC Commentary 2001, A/56/10, 2001
[424] Chorzow Factory case, (1928) PCIJ Series A, No.17, p.29; Spanish Zone of M orocco case (1923) 2 RIAA 615; 2
ILR 157

[425] J.G. Starke, Introduction to International Law, 10 ed., (Butterworths Singapore, 1989), p.293
[426] Chorzow Factory case, (1928) PCIJ Series A, No.17, p.29
[427] (1923) 2 RIAA 615; 2 ILR 157
[428] H.M osler, The International Society as a Legal Community, Dordrecht, 1980 p.157
[429] 82 ILR p.499
[430] ICJ Reports, 1997, pp.7, 38; 116 ILR p.1
[431] ICJ Reports, 1997, pp.7, 38; 116 ILR p.1
[432] Yearbook of the International Law Commission 1976, vol. II, pp.75ff and the ILC Commentary, 2001, p.68
[433] Article 17
[434] Article 18
[435] Article 16
[436] EC Arbitration Commission on Yugoslavia Opinion No.13 (1993) 96 ILR 726
[437] 82 ILR p.499
[438] 4 RIAA p.60 (1926); 3 AD p.213
[439] 5 RIAA p.516 (1929); 5 AD p.146
[440] 6 RIAA pp.42 (1920); 1 AD p.173
[441] ICJ Reports 1949, p.4; 16 AD p.155
[442] ILC Commentary, 2001, pp.69-70
[443] ICJ Reports, 1986, p.14; 76 ILR p.349
[444] ICJ Reports 1949, p.4; 16 AD p.155
[445] 82 ILR p.499
[446] Difference Relating to Immunity from Legal Process of a Special Rapporteur, ICJ Reports, 1999, pp.62, 87
[447] M assey Case 4 RIAA p.155 (1927); 4 AD p.250; Salvador Commercial Company Case 15 RIAA p.477 (1902); the
th

Sunday Times Case ECHR, Series A, vol. 30, 1979; 58 ILR p.491; the Young, James and Webster case, ECHR Series A, vol.
44, 1981; 62 ILR p.359

[448] Heirs of the Duc de Guise case 13 RIAA p.161 (1951); 18 ILR p.423; La Grand (Provisional M easures) Case, ICJ
Reports 1999 pp.9, 16; the Davy Case 9 RIAA p.468 (1903); the James Case 4 RIAA p.86 (1925); 3 AD p.218 and the
Pellat Case 5 AD p.536 (1929); 5 AD p.145

[449] Caire case, 5 RIAA pp.516, 530 (1929); 5 AD pp.146,148; M osse case, 13 RIAA p.494 (1953); 20 ILR p.217
[450] 4 RIAA p.110 (1926); 3 AD p.223
[451] ILC Commentary 2001, p.99; Yearbook of International Law Commission, 1975, vol.II, p.67
[452] Caire case, 5 RIAA pp.516, 530 (1929); Velasquez Rodriguez case, IACHR Series C, no.4, 1989 para 170, 95 ILR
pp. 259, 296; T.M eron, International Responsibility of States for Unauthorized Acts of Their Officials, 33 BYIL 1957
p.851

[453] Zafiro case, 6 RIAA p.160 (1925); 3 AD p.221; Re Gill 5 RIAA p.157 (1931); 6 AD p.203
[454] ILC Commentary 2001 p.104
[455] ICJ Reports, 1986, pp.14, 64-65; 76 ILR p.349
[456] 38 ILM 1999 pp.1518, 1541
632

[457] ICJ Reports, 1971, pp.17, 54; 42 ILR p.2

[458] Yeager case, 17 Iran-US CTR, 1987, pp.92, 104
[459] Home M issionary Society Case, 6 RIAA pp.42, 44 (1920); the Youmans case 4 RIAA p.110 (1926); 3 AD p.223;
the Herd Case 4 RIAA p.633 (1930)

[460] Judge Huber in the Spanish Zone of M orocco Claims, 2 RIAA pp.617, 642 (1925); 2 AD p.157; the Sambiaggo
Case, 10 RIAA p.499 (1903)

[461] ILC Commentary 2001, p.112

[462] 16 Iran US CTR, p.76; 82 ILR p.148
[463] 17 Iran-US CTR p.92; 82 ILR p.178
[464] 17 Iran-US CTR p.135; 82 ILR p.204
[465] Article 11, See ILC Commentary 2001, p.118
[466] ICJ Reports 1980 pp.3, 34-35; 61 ILR pp.530, 560
[467] R. Arnold, Aliens, EPIL I (1992), 102-7
[468] M . Akehurst, Jurisdiction in International Law, BYIL 46 (1972-1973), 145-151
[469] Peter M alanczuk, M ichael Barton Akehurst, Akehurst's modern introduction to international law, p.255
[470] W.K.Geck, Diplomatic Protection, EPIL I (1992), 1045, 1067
[471] ICJ Rep., 1970, 3, at 44-45
[472] RIAA III 1609
[473] Centinis Claim, RIAA X 552-555 (1903)
[474] Article 6bis, Part 2, ILC Draft Articles.
[475] Paris, 1868
[476] Donald Shea, The Calvo Clause at 12-13 (1955).
[477] Donald Shea, The Calvo Clause at 19 (1955).
[478] Donald Shea, The Calvo Clause at 19 (1955).
[479] Donald Shea, The Calvo Clause at 19 (1955).
[480] (1903) Ralston, International Arbitral Law and Procedure, p.72
[481] 31 M arch 1926. IV pp. 26-35.
[482] Donald Shea, The Calvo Clause at 20 (1955)
[483] Comment, The Calvo Clause: Its Current Status as a Contractual Renunciation of Diplomatic Protection, 6 T

EX.

INTL L. FORUM 289, 290 (1971) at 308

[484] Comment, The Calvo Clause: Its Current Status as a Contractual Renunciation of Diplomatic Protection, 6 T

EX.

INTL L. FORUM 289, 290 (1971) at 306

[485] A.20, ILC; See further ILC Commentary 2001, p.173

[486] A.21, ILC Draft Articles, See also ILC Commentary 2001, p.177
[487] ICJ Reports, 1996, pp.226, 242; 110 ILR p.163
[488] ILC Commentary, p.180
[489] US-France Air Services Agreement case, 54 ILR pp.306, 337; See also Report of the ILC, 1989, A/44/10, Report of
the ILC, 1992 A/47/10, pp.39ff

[490] Hungary v. Slovakia, ICJ Reports, 1997, pp.7, 55-57; 116 ILR p.1
[491] The Symposium on Counter measures and Dispute Settlement, 5 EJIL 1994 p.20 and Report of the ILC< 1995,
A/50/10, pp. 173ff

[492] US-France Air Services Agreement Arbitration, 54 ILR pp.303, 337; ILC Commentary 2001, p.341 and the Report
633

of the ILC on its 44th Session, 1992, A/47/10, p.70

[493] ILC Commentary 2001, p.345

[494] Yearbook of the ILC, 1961, vol II, p.46, See also ILC Commentary 2001, p.183
[495] PCIJ Series A, No.20, 1929, p.39; Brazillian Loans Case, PCIJ, Series A, No.20, 1929, p.120; 5 AD p.466
[496] 5 RIAA p.159 (1931); 6 AD p.203
[497] Yearbook of the ILC, 1979, vol. II, p.133
[498] 82 ILR pp.499, 551
[499] ILC Commentary 2001, p.189
[500] Yearbook of the ILC, 1979, vol. II, p.134
[501] Yearbook of the ILC, 1979, vol. II, p.133-135
[502] 82 ILR pp.499, 551
[503] ILC Commentary 2001, p.194
[504] Cmnd 3246, 1967
[505] Yearbook of the ILC, 1980, vol. II, p.39
[506] Rainbow Warrior Case, 82 ILR pp.499, 554-555
[507] Gabcikovo Nagymaros Project case, ICJ Reports, 1997, pp.7, 40; 116 ILR p.1
[508] 120 ILR pp.143, 191-192
[509] Article 45, ILC Commentary 2001, p.307
[510] Nauru (Preliminary Objections) case, ICJ Reports, 1992, pp.240, 247; 97 ILR p.1
[511] Ibid @ 253-254
[512] Article 46, ILC Commentary 2001, p.311
[513] Article 47, ILC Commentary 2001, p.313
[514] ICJ Reports 1970, pp. 3, 32
[515] Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970 ICJ Reports 4, 32.
[516] Article 30, ILC Commentary 2001, p.216
[517] 82 ILR pp.499, 573
[518] ICJ Reports, 2001
[519] PCIJ Series A No.17, 1928, pp.47-48
[520] Gabcikovo Nagymaros Project case ICJ Reports, 1997, pp.7, 80; 116 ILR p.1; M /V Saiga (No.2) 120 ILR pp.143,
199; S.D.M yers v. Canada 121 ILR pp.72, 127-128; Aloeboetoe v. Suriname IACHR 1993, Series C, No.15 @ para 43; 116
ILR p.260; Loayza Tamaya v. Peru (Reparations) IACHR 1998 Series C No.42, para 84; 116 ILR p.388; Suarez-Rosero v.
Ecuador (Reparations) IACHR, 1999, Series C, No.44, at para 39; 118 ILR p.92

[521] Suarez-Rosero v. Ecuador (Reparations) IACHR, 1999, Series C, No.44, at para 39; 118 ILR p.92
[522] Article 34 ILC Commentary 2001. p.235
[523] Aminoil case, 66 ILR pp.529, 533
[524] Yearbook of the ILC, 1981, vol. II, part I, p.79ff
[525] BP Case, 53 ILR, p.297
[526] 17 ILM 1978 p.1; 53 ILR p.389
[527] Liamco case, 20 ILM 1981 pp.1, 63-64; 62 ILR pp.141, 198; Aminoil Case 21 ILM 1982 p.976; 66 ILR p.519
[528] Article 36 (1); Gabcikovo Nagymaros Project case, ICJ Reports 1997, pp.7, 81; 116 ILR p.1
[529] ILC Commentary 2001, p.243; Article 36(2)
634

[530] IACHR 1989 Series C No.7, pp.34, 52; 95 ILR p.306

[531] ILC Commentary 2001, pp.255ff
[532] Article 31(2)
[533] 3 RIAA p.1609 (1935); 7 AD p.203
[534] 74 ILR pp.241,274
[535] Im Alone case 3 RIAA p.1609 (1935); 7 AD p.203
[536] Rainbow Warrior Arbitration 74 ILR pp.241,274
[537] Central German Interests in Polish Upper Silesia, PCIJ Series A, No.7, p.18 (1926); Corfu Channel case, ICJ
Reports 1949 pp.4, 35; 16 AD p.155

[538] ICJ Reports 1974, pp.253; 57 ILR p.398

[539] ILC Commentary 2001, p.263
[540] ILC Commentary 2001, p.714
[541] Shaw, p.720
[542] M . M ohr, The ILCs Distinction between international Crimes and International Delicts and its implications, in
Spin and Simma (eds.), UN Codification, p.115

[543] Oppenheims International Law, pp.533ff; G. Gilbert, The Criminal Responsibility of States 39 ICLQ 1990,
p.345

[544] Ian Brownlie, International Law and the Use of Force by States, Oxford, 1963, pp.150-154
[545] See generally De Arechaga, International Law
[546] Yearbook of the ILC, 1976, vol. II, pp.102-105.
[547] Crawford, Articles, pp.17ff
[548] ILC Commentary 2001, p.304
[549] 2002; See Report of the ILC on its 54 Session, A/57/10, 2002, p.167
[550] HM HK v. Netherlands 94 ILR p.343; Commercial FSA v. Council of M inisters 88 ILR p.691
[551] The M avromattis Palestine Concessions case, PCIJ, Series A, No.2, 1924, p.12; Panevezys Saldutiskis case PCIJ
th

Series A/B, No. 76; 9 AD p.308

[552] Lornho Exports Ltd. v. ECGD (1996) 4 All ER 673, 687; 108 ILR p.596
[553] Interhandel case, ICJ Reports, 1957, pp.6, 27 Admin Decision No. 5V, 7 RIAA p.119; 2 AD pp.185, 191 and US
v. Dulles 222 F. 2d. 390

[554] Barcelona Traction case, ICJ Reports, 1970, pp.3, 44; 46 ILR p.178
[555] ICJ Reports 1955, p.4, 22 ILR p.349
[556] Ibid
[557] Brownlie, Principles, Ch. 19
[558] Article 3, ILC 54 Report
[559] Borchard, Diplomatic Protection, pp.660ff; Whiteman, Digest, vol. VIII, 1967, pp.1243-1247
[560] Canevaro Case, 11 RIAA p.397 (1912); Salem Case 2 RIAA p.1161 (1932); 6 AD p.188; the M erge Claim 14 RIAA
th

p.236 (1955); 22 ILR p.443 and Dallal v. Iran 3 Iran-US CTR 1983 p.23

[561] Ibid
[562] ILC 54 Report, p.183
[563] Brownlie, Principles, pp.486-495
[564] ICJ Reports, 1970, pp.3, 42; 46 ILR pp.178, 216
[565] 120 ILR pp. 143, 184-185
th

635

[566] Ex Parte Ferhut Butt 116 ILR pp.607, 614-615

[567] ILC Commentary 2001, p.305
[568] 12 RIAA p.83, (1956); 23 ILR p.306
[569] Finnish Ships Arbitration 2 RIAA p.1479 (1934); 7 AD p.231
[570] Heathrow Airport User Charges Arbitration 102 ILR pp.215, 277ff
[571] ICJ Reports, 1989, p.15; 84 ILR p.311
[572] J. Castaneda, The Underdeveloped Nations and the Development

of International Law, 15 International

Organizations, 1961, p.38

[573] Lillich, Duties, p.349

[574] 4 RIAA p.60 (1926); 3 AD p.213
[575] PCIJ Series A, No.7, 1926; 3 AD p.429
[576] 4 RIAA p.119 (1926)
[577] 4 RIAA p.282 (1927)
[578] 4 RIAA p.77 (1926)
[579] Neer Claim 4 RIAA p.60 (1926); 3 AD p.213
[580] M .S.M c Dougal et al., Studies in World Public Order, New Haven, 1960, p.869
[581] Lillich, Duties, p.350
[582] AM CO v. Indonesia (M erits) 89 ILR pp.405, 451
[583] 4 RIAA p.82 (1926); 3 AD p.218
[584] Roberts claim, 4 RIAA p.77 (1926) and the Quintanilla Claim 4 RIAA p.101 (1926)
[585] Article 2, ICCPR, 1966; Article 1 ECHR 1950
[586] UNGA Res 40/144
[587] 10 RIAA p.528, (1903); See also Dr. Bregers case, Whiteman, Digest, vol VIII, p.861
[588] Rankin v. The Islamic Republic of Iran 17 Iran-US CTR pp.135, 142
[589] Thakrar case, 1974 QB 684; 59 ILR p.450
[590] AM CO v. Indonesia (M erits) 89 ILR pp.405, 451
[591] 53 ILR p.389
[592] Higgins, Taking of Property, p.268
[593] 1961 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens 55 AJIL 1961
p.548 (A.10(7))

[594] 20 ILM 1981, pp.1, 53; 62 ILR pp.141, 189; Shufeldt case 2 RIAA pp.1083, 1097 (1930); 5 AD p.179
[595] S.D.M yers v. Canada 121 ILR pp.72, 122
[596] 55 AJIL 1961 pp.553-554; A. 10(3)(a)
[597] 4 Iran-US CTR p.122; 85 ILR p.349
[598] Kalamazoo Spice Extraction Company v. The Provisional M ilitary Government of Socialist Ethiopia 86 ILR p.45
and 90 ILR p.596; Agip SpA v. The Government of the Popular Republic of Congo, 67 ILR p.319; Benvenutti and Bonfant
v. The Government of the Popular Republic of the Congo 67 ILR p.345

[599] 95 ILR pp.183, 207-210

[600] 39 ILM 2000 pp. 1317, 1329
[601] PCIJ Series A, No.7, 1926; Norwegian Shipowners Claims case 1 RIAA p.307 (1922); Spourng and Lonroth Case,
Series A No.7 1926; Papamichala Poulos v. Greece, ECHR, Series A, No.260 (1993) p.15

[602] PCIJ Series A, No.7, 1926; 3 AD p.429

636

[603] 53 ILR p.297

[604] 20 ILM 1981, p.1; 62 ILR p.141
[605] 39 ILM 2000, pp.1317, 1329
[606] Robinson, Expropriation, p.178
[607] Hackworth, Digest, vol. III 1940-1944, p.662
[608] Chorzow Factory case, PCIJ Series A, No.17, 1928, p.46; 4 AD p.268; The Norwegian Shipowners Claims case 1
RIAA p.307 (1922)

[609] 17 ILM 1978, pp.3, 29; 53 ILR pp.389, 489; Banco Nacional de Cuba v. Chase M anhattan Bank, 658F.2d (875)
(1981); 66 ILR p.421

[610] 21 ILM 1982 p.976; 66 ILR p.519

[611] 31 ILM 1992, p.1382
[612] 34 ILM 1995, p.391
[613] Aminoil case, 21 ILM 1982, pp.976, 1038; 66 ILR pp.519, 608-609
[614] INA Corporation v. The Islamic Republic of Iran, 8 Iran-US CTR, pp.373, 380; 75 ILR p.603
[615] UKM IL 63 BYIL 1992 p.768
[616] 24 ILM 1985 pp.1022, 1037; 89 ILR p.505
[617] 119 ILR pp. 615, 641; See also Benvenutti and Boufant v. The Government of the Popular Republic of Congo 67
ILR p.345 and AGIP SpA v. The Government of the Popular Republic of Congo 67 ILR p.318

[618] Phelps Dodge Corporation v. Iran 10 Iran-US CTR 1986 pp.121, 132-133; Biloune v. Ghana Investment Centre 95
ILR pp.183, 228-229

[619] INA Corporation v. The Islamic Republic of Iran, 8 Iran-US CTR, pp.373; 75 ILR 595
[620] 8 Iran-US CTR p.378; 75 ILR p.602
[621] 15 Iran-US CTR pp.246; 83 ILR p.565
[622] INA Corporation v. The Islamic Republic of Iran, 8 Iran-US CTR, pp.373; 75 ILR 595
[623] E. Denza and D. Brooks, Investment Protection Treaties: UK Experience, 36 ICLQ, 1987, p.908
[624] A. M aniruzzaman, Expropriation of Alien Property and the Principle of Non-Discrimination in the International
Law of Foreign Investment, 8 Journal of Transnational Law and Policy, 1999, p.141

[625] 20 ILM 1981, p.1; 62 ILR p.141

[626] See generally D.P. OConnell, State Succession in Municipal Law and International Law, Cambridge, 2 vols., 1967;
K.Zemanek, State Succession after Decolonization 116 HR 1965, p.180

[627] D.P. OConnell, State Succession in Municipal Law and International Law, Cambridge, vol. I, 1967, p.9ff
[628] D.P. OConnell, State Succession in Municipal Law and International Law, Cambridge, vol. II, 1967, p. 178-182
[629] Yearbook of the ILC, 1974, vol. II, p.186
[630] Yearbook of the ILC, 1974, vol. II p.192
[631] Shaw, State Succession Revealed
[632] Oppenheims International Law, p.236
[633] Case No.2, BGz 38/91, 94 ILR pp.68, 77-78
[634] S. Deter, German Unification and State Succession, ZaoRV 51 (1991), 349-383, at 352
[635] Article 2, Vienna Conventions, 1978 and 1983, Opinion No.1, of the Yugoslav Arbitration Commission, 92 ILR
pp.162, 165; Guinea Bissau v. Senegal 83 ILR pp.1, 22 and the El Salvador/Honduras Case, ICJ Reports, 1992, pp.351, 598;
97 ILR pp.266, 514

[636] D. P. OConnell, State Succession in Municipal and International Law, 2 volumes, 1967
637

[637] A.2(1) (e) of the Vienna Convention on Succession of States to Treaties, 1978 and A. 11 of the Vienna Convention
of States, 1983

[638] Yearbook of International Law, 1962, vol. II., pp.101-103

[639] R. M illerson, International Law, Rights and Politics, London, 1994, pp.140-145
[640] 31 ILM 1992 p.151
[641] Oppenheims International Law, p.193
[642] M ullerson, International Law, pp. 119-120
[643] Shaw, State Succession Revisited, pp. 56ff
[644] M . Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86
AJIL 1992, p.569

[645] Slovenia and Croatia on 25

th

June, 1991, M acedonia on 17th September, 1991, and Bosnia and Herzegovina on 14th

October, 1991

[646] 92 ILR p.199

[647] UNGA Res. 46/236; 46/237; 46/238
[648] Reaffirmed in Opinion No.10
[649] UNSC Res 757 (1992); UNGA Res 47/1
[650] Article 1, 30 ILM 1991, p.820
[651] See Generally Fourth Report of the Foreign Affairs Committee, Session 1989-1990, June 1990
[652] Ibid, p.2
[653] 29 ILM 1990, p.1186
[654] Oppenheims International Law, p.211; Oeter, German Unification, p.363
[655] Article 17 (3)
[656] OConnell, State Succession, vol. II, p. 71ff
[657] OConnell, State Succession, vol. II, p. 77ff
[658] Yearbook of the ILC, 1974, vol. II, p.208
[659] OConnell, State Succession, vol. II, pp. 377-378
[660] OConnell, State Succession, vol. II, pp. 88ff
[661] Articles 11 and 12, Vienna Convention on Succession of States in Respect of Treaties, 1978
[662] M annings Diplomatic Correspondence, vol. III (Great Britain) doc 2767, as cited in Cukwurah, Settlement, p.106
[663] ICJ Reports, 1986, pp.554, 565; 80 ILR pp.440, 469-470
[664] ICJ Reports 1994, pp.6, 37; 100 ILR pp.1,36
[665] 114 ILR pp.1, 48
[666] Touval, The OAU and African Borders, (1967) p.102; See also Case Concerning the Continental
Shelf(Tunisia/Libya) ICJ Rep, 1982, 18, 65-66 (para 84) 131

[667] OConnell, State Succession, vol. II., pp.2, 80 and 136

[668] Article 17 Vienna Convention 1978
[669] Article 24 Vienna Convention 1978
[670] Udokang, Succession, p.225
[671] OConnell, State Succession, vol. II., pp.213; Udokang, Succession, p.225
[672] US-Panama, Belgium and Finland support this approach. Udokang, Succession, pp.412-415
[673] R. Higgins, Problems and Process, Oxford, 1994, p.95
638

[674] CCPR/C/SR.1178/Add.1, pp.2-3

[675] Commission on Human Rights Resolution 1995/18 adopted on 24 February, 1995
[676] ICJ Reports, 1996, pp.595, 612
[677] Ibid, p. 636
[678] Ibid, pp.645ff
[679] RIAA VI 120; See also E.H. Riedel, Lighthouses Cases, EPIL 2 (1981)
[680] (1905) 2 KB 291
[681] PCIJ Series B, no. 6
[682] M avrommatis case, (1924) PCIJ Series A no.2, 28
[683] 92 ILR p. 205.
[684] 96 ILR p.731
[685] Peter Pazmany University Case (1933) PCIJ Series A/B, no.61, 237; See also V.D. Degan, State Succession, FYIL 4
th

(1993), 3-21

[686] UN Tribunal for Libya 22 ILR p.103

[687] Stern, Succession, p.329
[688] Chorzow Factory case, PCIJ Series A, No.7, p.30; German Settlers in Upper Silesia case, PCIJ, Series B, No.6, p.6
[689] Yearbook of the ILC, 1970, vol. II, pp.136-143
[690] Opinion No. 14, 96 ILR p.732
[691] Article 10, Vienna Convention, 1983; Article 21 for Archives and Article 35 for Debts, Vienna Convention 1983
[692] Opinion No.11, 96 ILR p.719
[693] Yugoslav Agreement, 2001, Articles 3 and 7 of Annex A and Article 4(3) of Annex B
[694] Opinion No.14, 96 ILR p.732
[695] Ibid.
[696] Ibid.
[697] Third US Restatement of Foreign Relations Law, pp. 102ff; Peter Pazmany University case PCIJ Series A/B No. 61,
1933, p. 237; Haile Selassie v. Cable and Wireless Ltd (No.2) 1939 Ch. 182 and Kunstsammlungen zu Weimar v. Elicofon 536
F. Supp. 829, 855 (1981)

[698] Haile Selassie v. Cable & Wireless Ltd. (1939) ChD 182
[699] Yearbook of the ILC, 1981, vol. II, part 2, p.33
[700] Oppenheims International Law, p.223, note 6
[701] Ibid at p.21.
[702] Yearbook of the ILC, 1981, vol. II, part 2, pp.35-36.
[703] 96 ILR p.731
[704] Article 3(2) of Annex A
[705] Article 4(1)
[706] OConnell, State Succession, vol. I, p.204
[707] Article 18(1)(d), Vienna Convention, 1983
[708] UNESCO, Records of the General Conference, 18 Session, Resolutions, 1974, pp.68ff.,
th

th

18-19; UNESCO Records of the General Conference , 20 Session, Resolutions, 1978, pp.92-93.

[709] Yearbook of the ILC, 1979, vol. II, part I, p.93

[710] Articles 21-4
639

20 C/102, 1978, paras.

[711] 49 UNTS p.142

[712] Yearbook of the ILC, 1979, vol. II, part I, p.113
[713] Article 29
[714] Annex D
[715] Ibid., Article 6
[716] OConnell, vol. I, p. 416
[717] Ibid
[718] Article 39, Vienna Convention 1983
[719] Ottoman Public Debt Case, 1 RIAA p.529
[720] Williams, State Succession, pp.786 and 802-803
[721] OConnell, State Succession, vol. I, pp.404-406
[722] Oppenheims International Law, p.221
[723] A/CN.4/149, p.8
[724] Opinion No. 2, 92 ILR p.167, 168-169
[725] Report of the ILC on its 51 Session, A/54/10, 1999, p.12
[726] Ibid, p.40
[727] OConnell, State Succession, vol. I, Chapter 10
[728] PCIJ Series B, No.6, 1923
[729] (1905) 2 KB 391
[730] [2007] Judgment, ICJ General List No. 91, p. 108, paragraph 297.
[731] Ibid, paragraphs 76-78
[732] Oppenheims International Law, (eds. R. Y. Jennings and A. D. Watts), 9 edn., London 1992, chapter 5
[733] Ibid at p.563
[734] R. Falk, A New Paradigm for International Legal Studies: Prospects and Proposals, 84 Yale Law Journal, 1975,
st

th

pp.969, 973, 1020

[735] Shaw, Territory, pp.65-66

[736] R. M egarry and H.W.R.Wade, The Law of Real Property, 5 Edn., London, 1984
[737] See above, Chapter on State Succession
[738] Eastern Greenland Case, PCIJ, Series A/B, No.53, 1933, p.46; 6 AD p.95
[739] 2 RIAA, pp. 829, 838 (1928); 4 AD pp.103, 104
[740] The Law of Nations, 6 edn., Oxford, 1963, p.162
[741] 2 RIAA, pp. 829, 838 (1928); 4 AD pp.103, 104
[742] Ibid.
[743] Schoenborn, Nature Juridique, p.96
[744] ICJ Reports, 1986, pp.554, 565; 80 ILR, pp.440, 459
[745] The Eastern Greenland Case, PCIJ Series A/B, No.53, 1933, p.46; 6 AD p.95
[746] Minquiers and Ecrehos case, ICJ Reports, 1953, pp.47, 52; 20 ILR p.94
[747] Western Sahara case, ICJ Reports, 1975, pp.12, 48, 64 and 68; 59 ILR p.14; Qatar v. Bahrain ICJ Reports, 2001,
th

th

para 86

[748]

Western Sahara case, ICJ Reports, 1975, pp.12, 41-43; 59 ILR p.14; Rann of Kutch case, 50 ILR p.2,
Dubai/Sharjah Award, 91 ILR pp. 543, 587 and the Eritrea/Yemen case, 114, pp.1, 116

640

[749] U.S. Nationals in M orocco, ICJ Reports (1952) 176 at 189; Right of Passage over Indian Territory, ICJ Reports
(1960), 6 at 37; Namibia Advisory Opinion, ICJ Reports (1971), 16 at 31 and the Aegean Sea Case, ICJ Reports (1978), 3 at
32.

[750] Oppenheims International Law, p.677

[751] Jennings, Acquisition, p.37
[752] Shaw, Title to Territory, p.168-169
[753] International Status of South West Africa, ICJ Reports, 1950, p.128; 17 ILR p. 47; The South West Africa Cases,
ICJ Reports, 1966, p.6; 37 ILR p. 243; The Namibia case, ICJ Reports 1971, p.16; 49 ILR p.2 and the Western Sahara
Case, ICJ Reports, 1975, p.12; 59 ILR p.14

[754] D. Greig, International Law, 2 edn., London, 1976, p.156

[755] Oppenheims International Law, p.677
[756] Starke, Acquisition of title, p.413
[757] UNGA Res 2625 (XXV), 24 October 1970, Declaration on Principles of International Law Concerning Friendly
nd

Relations and Cooperation among States in Accordance with the Charter of the United Nations; See also the Namibia Case,
ICJ Reports, 1971, pp.16, 31; 49 ILR pp.2, 21

[758] J.G. Starke, The Acquisition of Title to Territory by Newly Emerging States, British Yearbook of International
Law 41 (1965-66), 411-416

[759] Island of Palmas Case 2 RIAA,pp. 829,838 (1928); 4 AD, pp. 103, 104
[760] Chamizall Arbitration 5 AJ (1911), 785; RIAA xi 316
[761] A.J. Day, Border and territorial Disputes, 2 ed., London, 1987, p.127
[762] Nebraska v. Iowa (1892) 143 US 359; Kansas v. M issouri (1943) 322 US 213
[763] Georgia v. South Carolina 111 L.Ed.2d 309; 91 ILR p.439, 458;Land, Island and Maritime Frontier Dispute (El
nd

Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, 351, 546

[764] Oppenheims International Law, pp.679-686

[765] Eritrea/Yemen 114 ILR p.48
[766] Libya/Chad ICJ Reports 1994, pp.6, 37; 100 ILR p.1
[767] Libya/Chad, ICJ Reports 1994, pp.6, 23; 33 ILR p.48
[768] Ibid
[769] Argentina/Chile Frontier Award (La Palena) 38 ILR pp. 10, 89 and the Eritrea/Ethiopia case, of 13

th

April, 2002,

p.61

[770] Libya/Chad, ICJ Reports 1994, pp.6, 23; 33 ILR p.48, Beagle Channel case, 52 ILR pp. 93, 124 and the Botswana
Namibia case ICJ Reports, 1999, pp.1045, 1059-1060

[771] ICJ Reports 1999, pp.1045, 1060

[772] 13 April, 2002, p.61
th

[773] Ibid.
[774] Brownlie, Principles, p.135
[775] Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J.
Reports 1992, 351, 546

[776] Dubai/Sharjah case, 91 ILR pp. 543, 577 and Qatar/Bahrain, ICJ Reports, 2001, paras 110ff
[777] Reparation Commission v. German Government, 1924, Annual Digest of International Law Cases, 1923-1924, Case
No.199

[778] 2 RIAA pp.826

[779] Beagle Channel case, 52 ILR pp. 93, 124
641

[780] 2 RIAA pp.826

[781] (1954) I.R.A. Calcutta, p.615
[782] 4 RIAA p.158 (1925); 3 AD, p.336
[783] Colombia v. Venezuela, Arbitration by the Swiss Federal Council, M arch 24, 1922; AD 1919-1922, Case No.54
[784] Oppenheim, International Law, vol.1, 8 ed., H. Lauterpacht (1955), p.550
[785] Special Arbitral Tribunal, September 3, 1924, AD, 1923-1924, Case No.199
[786] Oppenheims International Law, pp. 681-682
[787] M .S.M c Dougal and F.P.Feliciano, Law and Minimum World Public Order, New Haven, 1961, pp.733-736 and
th

739-744

[788] Y. Blum, The M issing Reversioner in J.N.M oore, Princeton, 4 volumes, 1974-1989
[789] Article 51, UN CHarter
[790] Oppenheims International Law, p.436
[791] OConnell, International Law, p.436
[792] Cmd 6648 (1945)
[793] UNSC Res 497 (1981)
[794] Mabo v Queensland (No. 2) [1992] HCA 23, (1992) 175 CLR 1
[795] M . Taylor Fravel, Strong Borders, Secure Nation: Cooperation and Conflict in

Chinas Territorial Disputes

(Princeton: Princeton University, 2008); www.globalresearch.ca/index.php?context=va&aid=21327

[796] Brownlie, Principles of Public International Law, p.139

[797] Hall, International Law, p.126
[798] Goebel, The Struggle for the Falkland Islands, pp. 58, 69-73, 89-117
[799] 2 RIAA,pp. 829,838 (1928); 4 AD, pp. 103, 104
[800] M c Nair, Opinions, 285, 287, 320
[801] Von der Heydte 29 AJ (1935), 461-462
[802] Eastern Greenland Case (Denmark v. Norway), (1933( P.C.I.J. (Ser. A/B) No. 53
[803]Clipperton Island case,26 American Journal of International Law 390 at 393
[804] Ibid
[805] Waldock, 36 Grotius Society (195), 325
[806] 114 ILR pp.1, 124 and 125
[807] RY Jennings, The Acquisition of Territory in International Law, 1962
[808] Minquiers and Ecrehos (United Kingdom/France), Judgment, I.C.J. Reports 1953, p. 57;

Land, Island and

Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 565, para.
345; Western Sahara, Advisory Opinion, [1975] I.C.J. Rep. 12 at para. 79

[809] Island of Palmas case (1928) 2 RIAA 829

[810] 1933 PCIJ Series A/B, No.53
[811] George Schwarzenberger, Title to Territory, (1957), at p.310
[812] Theories et Realities en Droit International Public (1953) pp.244-245, 2 ed., (1960), pp.255-256
[813] ICJ Reports 1951, p.130
[814] J. Simsarian, The Acquisition of Legal Title to Terra Nullius, Political Science Quarterly 53 (1938), 111-128.
[815] Clipperton Island Case, (1932) France v. Mexico, RIAA XI 1105, 1110-1111; S.T. Bernardez, Territory,
nd

Abandonment, EPIL I (1987), 494-496

[816] P. Beck, the Falkland Islands as an International problem, 1988; A. Donchev (ed.),
642

International Perspectives on

the Falkland Conflict: A Matter of Life and Death, 1992

[817] Western Sahara Case, ICJ Reports 1975, 12, 390; D.P. OConnell, International Law, 2 ed., 1970, vol. 1, 408-409
[818] F.A. Frhr v. d. Heydte, Discovery, Symbolic Annexation and Virtual Effectiveness in International Law, American
nd

Journal of International Law 29 (1935), 448-471

[819] A.S. Keller, O.J. Lissitzyn, F.J. M ann, Creation of Rights of Sovereignty through Symbolic Acts, 1400-1800 (1938)
[820] (1933), PCIJ Series A/B, no.53 at 46
[821] Fisheries case, ICJ Rep, 1951, 116, 184
[822] (1959) ICJ Rep. p.209
[823] W.E. Hall, International Law, 8 ed., (Clarendon Press, Oxford), 1924, p.143
[824] 5 American Journal of International Law, 782 (1911)
[825] P. Beck, the Falkland Islands as an International problem, 1988; A. Donchev (ed.), International Perspectives on
th

the Falkland Conflict: A Matter of Life and Death, 1992

[826] Kasikili/Sedudu Island Case, ICJ Reports, 1999, p.1045

[827] Cameroon v. Nigeria, ICJ Reports 1994, p.105
[828] (1928) 2 RIAA 829
[829] Land, Island and M aritime Frontier Dispute Case (El Salvador v. Honduras) (M erits) 1992 ICJ Reports 35;
Cameroon v. Nigeria, ICJ Reports 1994, p.105

[830] 2002 ICJ Rep p.625

[831] (1932) 26 American Journal of International Law 390
[832] Denmark v. Norway (1933) PCIJ Series A/B, No.53
[833] 2002 ICJ Rep p.625
[834] 1992 ICJ Rep 92
[835] 1994 ICJ Rep 6
[836] El Salvador v. Honduras 1992 ICJ Rep 92
[837] 2002 I.C.J. 125
[838][1986] I.C.J. Rep. 554
[839] Eastern Greenland Case Denmark v. Norway (1933) PCIJ Series A/B, No.53; Palau Litigan and Palau Sipadan 2002
ICJ Rep p.625; Clipperton Arbitration (1932) 26 American Journal of International Law 390

[840] L. F. E. Goldie, The Critical Date 12 ICLQ 1963, p.1251

[841] Island of Palmas case, 2 RIAA p.845; Eastern Greenland case, PCIJ, Series A/B, No.53, p.45
[842] (1928) 2 RIAA 829
[843] France v. United Kingdom (1953) ICJ Rep at p.47
[844] The Burkina Faso/M ali case, ICJ Reports 1986, p.568; 80 ILR p.440
[845] Eritrea/Ethiopia case, pp. 83-84
[846] Libya/Chad case, ICJ Reports, 1994, p.6; 100 ILR p.1
[847] (1928) 2 RIAA 829
[848] F. A. Von der Heydte, Discovery, Symbolic Annexation and Virtual Effectiveness in International Law (1935) 29
American Journal of International Law 448

[849] T. O. Elias, The Doctrine of Intertemporal Law (1980) 74 American Journal of International Law 285
[850] Phillip Jessup, The Palmas Island Arbitration (1928) 22 American Journal of International Law 735
[851] Affaire Des Grisbararna (Norway v. Sweden) XI RIAA 147 (Award of 23 October, 1909)
[852] 1933 PCIJ Series A/B, at 334
rd

643

[853] ICJ Reports 1978, pp.3, 33-34; 60 ILR pp.562, 592

[854] Phillip Jessup, The Palmas Island Arbitration (1928) 22 American Journal of International Law 735
[855] G. H. Hackworth, Digest of International Law, Vol. I., Washington, 1940, p.732; L.H. Woolsey, The Ecuador-Peru
Boundary Controversy 31 American Journal of International Law (1937) p.97-100; Colombia-Venezuela Arbitration (1922)
AD (1919-1922) Case No.54, p.84; Beagle Channel Arbitration Award, London, HM SO, 1977.

[856]

F. C. Fisher, The Arbitration of the Guatemala-Honduras Boundary Dispute, 27 American Journal of

International Law (1933) p.403 at 415.

[857] See the Cairo Resolution, 21 July, 1964

[858] [1986] I.C.J. Rep. 554
[859] Ibid. at p.557
[860] Ibid. at p.565
[861] Land Island and M aritime Frontier Dispute (El Salvador v. Honduras) (M erits) (1992) ICJ 351; 97 ILR 266
[862] Ibid. at p.388
[863] The European Council Arbitration Commission on Yugoslavia (Chairman R. Badinter) (1992) 92 ILR 167
[864] Ibid.
[865] Portugal v. Australia, 1995 ICJ Rep 90
[866] 2004 ICJ Rep para. 88
[867] UKM IL 70 British Yearbook of International Law, 1999, p.443
[868] J. Crawford, State Practice and International Law in Relation to Secession 69 British Yearbook of International
st

Law, 1998, p.85

[869] (1998) 161 DLR (4 ) 385, 436; 115 ILR p.536

[870] Western Sahara Case 1975 ICJ Rep 12
[871] Antonio Cassesse, Self Determination of Peoples, Cambridge, 1995, p.120
[872] Shaw, Title to Territory, chapter 5
[873] Document No. S/726, 21 April, 1948
[874] http://www.icj-cij.org/docket/files/141/15987.pdf
[875] J.L. Brierly, Law of Nations, 6 ed., (Clarendon Press, Oxford), 1963, p. 191
[876] Union of India v. Sukumar Sengupta, at 1990 SC 1692 at 1707
[877] 11 RIAA p.167 (1910)
[878] PCIJ Rep., Series A, No. 1 (1923)
[879] (1960) ICJ Rep 6
[880] LNOJ, Special Supp., No.3 (1920) p.3
[881] N. M atte, Treatise on Air-Aeronautical Law, 3 Edition, M ontreal, 1981, Chapter 5
[882] Ibid at p.83
[883] N. M atte, Treatise on Air-Aeronautical Law, 3 Edition, M ontreal, 1981, pp. 91-96
[884] K. Hailbronner, Airspace over M aritime Areas, EPIL I (1992), 90-94
[885] Article 1, Articles 5-10
[886] 15 UNTS 295
[887] L. Weber, Chicago Convention, EPIL I (1992), 571-573
[888] ICJ Reports, 1986, pp.14, 128; 76 ILR p.1
[889] W. Blackstone, Commentaries, Oxford, 1775, vol. II, Chapter 2, p.18
th

st

th

rd

rd

644

[890] US v. Hungary, ICJ Rep, 1954, 99-105; Aerial Incident of 7

th

October, 1952, ICJ Rep, 1956, 9-11; Aerial Incident of

th

10 M arch, 1953, ICJ Rep 1956, 6-8

[891] Aerial Incident of 27 July, 1955 (Israel v. Bulgaria), ICJ Rep, 1959, 127-204.
[892] American Journal of International Law, 54 (1960), 836; American Journal of International Law 56 (1962), 135
[893] American Journal of International Law, 47 (1953), 559, 586
[894] ILM 22 (1983), 1185, 1187
[895] Ibid at p. 1148
[896] Ibid at p. 1110, 1114, 1118, 1129, 1133-1134, 1139
[897] Ibid at 1126-1128
[898] I.F. Dekker/H.H.G. Post (eds.), The Gulf War of 1980-1988, 1992.
[899] Aerial incident of 3 July 1988, Iran v. USA, 13 December 1989, ICJ Rep. 1989, 132, ILM 29 (1990), 123
[900] New Zealand Air Line Pilots Association Inc. v. Attorney-General (1997) 3 NZLR 269; 120 ILR p.551
[901] D. P. OConnell, International Law, 2 edn., London, 1970, vol. I, p.521.
[902] Oppenheims International Law, p.656
[903] J. Dutheil de La Rochere, Aspects Nouveaux du Bilateralisme Aerien, AFDI, 1982, p.914
[904] M atte, Treatise, pp. 591-595
[905] DUSPIL 1977 pp. 638-641
[906] DUSPIL 198101988, Washington, 1995, vol. III., pp. 3137ff
[907] www.icao.org
[908] Article 44, Chicago Convention, 1944
[909] Grein v. Imperial Airways Ltd., (1937) 1 KB 50; 8 AD p.453; Ritts v. American Overseas Airlines US Av R, 1949,
th

rd

th

nd

p.65 and the American Smelting and Refining Co. v. Philippine Airlines Inc. US and C Av R, 1954, p.221; 21 ILR p.286

[910] TWA Inc. Franklin M int Corporation 23 ILM 1984 p. 814

[911] Fothergill v. M onarch Airlines, (1980) 2 All ER 696; 74 ILR p. 627; Chen v. Korean Airlines Ltd. 109 S. Ct. 1676
(1989) and Coccia v. Turkish Airlines (1985) Dir. M ar. 751 (Italian Constitutional Court).

[912] In re Paris Air Crash of March 2, 1974 399 F. Suppp. 732 (1975). DUSPIL, 1975, pp. 459-461
[913] 70 BYIL, 1999, p. 313
[914] See also Sidhu v. British Airways, (1947) AC 430; El Al Israel Airlines v. Tsui Yuan Tseng (1999) L. Ed. 2d 575
[915] Article 21
[916] Shaw, p. 472
[917] 403 F. Supp. 1322
[918] Day v. TWA Inc. 528 F. 2d 31 (1975)
[919] See Chapter on Terrorism for a detailed explanation.
[920] ICJ Reports, 1986, pp.3, 128; 76 ILR pp.349, 462
[921] Aerial Incident case, ICJ Reports, 1959, pp. 127, 130; 27 ILR p.557
[922] 12 ILM 1973, p.1180
[923] Report of the Secretary general of ICAO, 23 ILM , 1984, p. 864
[924] 22 ILM , 1983, p.1148
[925] 23 ILM , 1984, p. 864
[926] Ibid, p.705
[927] Ibid, p.864
645

[928] Keesings record of World Events, pp. 36064, 36169, 36631 and 37423
[929] Ibid. See also Lowenfeld Agora: The Drowning of Iran Air Flight 655 83 American Journal of International Law
1989, p.332

[930] ICJ Reports, 2000. Order of Court, 22 February, 1996.

[931] PIO 6/96; See also UNSC Res 1067 (1996)
[932] 41 ILM , 2002, p.501
[933] Christol, Modern International Law, pp. 13-20
[934] Fawcett, Outer Space, chapter 7
[935] See UNGA Res 1721 (XVI) and 1884 (XVIII)
[936] See The Space M illennium: The Vienna Declaration on Space and Human Development adopted by the Third UN
nd

Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III), Vienna, 1999

[937] Oppenheims International Law, p.828

[938] Christol, Modern International Law, pp.25-26
[939] Bin Cheng, Article VI of the 1967 Treaty Revisited, 1 Journal of Space Law, 1998, p.7
[940] Bin Cheng, Studies in Space Law, Chapters 17 and 18
[941] 18 ILM , 1979, pp. 899ff
[942] C.Q. Christol, The M oon Treaty Enters into Force, 79 American Journal of International Law, 1985, p. 163
[943] Articles XI(5) and (7)
[944] www.esa.int/esaHS/index.html <search keyword: International Space Station>
[945] DUSPIL 1976 pp. 427-428
[946] Christol, Modern International Law, Chapter 12
[947] Article 19, ICCPR, 1966; Article 10, UDHR, 1948
[948] Nicholas M ateesco M atte, ed., Space Activities and Emerging International Law, p.438
[949] Nicholas M ateesco M atte, ed., Space Activities and Emerging International Law, p.453ff
[950] Gotlieb, The Impact of Technology on the Development of Contemporary International Law, 170 Hague Recuiel
p.115

[951] USSR and France, in a joint proposal, A/AC.105/C.2/L.99 (1974)

[952] A/AC.105/321, Annex IV (1983)
[953] Christol, Modern International Law, pp. 451ff
[954] Gorove, Developments, pp.891-895
[955] DUSPIL, 1979, pp. 1187-1188
[956] E. D. Brown, The International Law of the Sea, Aldershot, 2 vols., 1994; R. R. Churchill and A. V. Lowe, The Law
of the Sea, 3rd edn., M anchester, 1999; D. P. OConnell, The International Law of the Sea, Oxford, 2 vols., 1982-1984; C. J
Colombos, The International Law of the Sea, 6th edn, London, 1967

[957] Hugo Grotius, Mare Liberum, 1609; See O Connell, The International Law of the Sea, vol. I, pp. 9ff.
[958] R. P. Anand, Origin and Development of the Law of The Sea, (I. A. Shearer ed.) Vol. 1, 1984; E. D. Brown, The
International Law of the Sea, Aldershot, 2 vols., 1994

[959] El Salvador/Honduras (Nicaragua Intervening), ICJ Reports, 1990, pp.92, 126; 97 ILR, p.214
[960] Churchill and Lowe, Law of the Sea, pp. 15ff
[961] H. Caminos and M . R. M olitor, Progressive Development of International Law and the Package Deal, 79
American Journal of International Law, 1985, p. 871

[962] E. Suy, Consensus, EPIL I (1992), 759-761

646

[963] D. H. Anderson, Efforts to Ensure Universal Participation in the United Nations Convention on the Law of the
Sea, ICLQ 42 (1993), 654-664

[964] J. R. Stevenson/ B.H. Oxman, The Future of the United Nations Convention on the Law of Sea, American journal
of International Law 88 (1994), 488-499

[965] Article 5(1), 1958 Convention, and Article 8(1) of the 1982 Convention. See also Regina v. Farnquist (1981) 54
CCC (2d.) 417; 94 ILR, p.238

[966] V. D. Degan, Internal Waters, NYIL 17 (1986), 3-44

[967] Article 2, 1982 Convention
[968] A. F. de Zayas, Ships in Distress, EPIL 11 91989), 287-289
[969] Article 8 (2), 1982 Convention
[970] 1 Coxs Criminal Cases 198
[971] 120 US 1 (1887); Armament Dieppe SA v. US 399 F.2d 794 (1968)
[972] R. Lagioni, M erchant Ships, EPIL 11 (1989), 228-233
[973] See Articles 218 and 220, 1982 Convention.
[974] The Schooner Exchange v. M c Faddon 7 Cranch 116 (1812)
[975] Qatar v. Bahrain, ICJ Reports, 2001, para. 184; Eritrea/Yemen (Phase Two: M aritime Delimitation) 119 ILR
pp.417, 458; See also Oppenheims International Law, p.607

[976] Dubai-Sharjah Border Award, 91 ILR pp.543, 660-663.

[977] Qatar v. Bahrain, ICJ Reports, 2001, para. 202
[978] Ibid., para 207.
[979] Shaw, International Law, p. 496
[980] ICJ Reports, 1951, p. 116; 18 ILR p.86
[981] Ibid p.128; 18 ILR p. 91
[982] Ibid p.129; 18 ILR p. 92
[983] Ibid p.139; 18 ILR p.102
[984] ICJ Reports 1951, p.139; 18 ILR p. 102
[985] Territorial Waters Order in Council, 1964, Article 3, s.1, 1965, Part III, s.2, p. 6452A
[986] Churchill and Lowe, Law of the Sea, p. 39
[987] ICJ Reports, 2001, para 213
[988] Shaw, p.499
[989] North Atlantic Fisheries Case, 11 RIAA p.167 (1910), Anglo Norwegian Fisheries Case ICJ Reports 1951, p.116;
18 ILR p.86

[990] Tunisia/Libya Continental Shelf Case, ICJ Reports, 1982, pp. 18, 74; 67 ILR, pp.4, 67
[991] Whiteman, Digest, vol. Iv, pp.250-257
[992] El Salvador/Honduras; Nicaragua Intervening, ICJ Reports, 1992, p.351; 97 ILR, p. 266
[993] Ibid p.589/p.505
[994] Ibid p.601/p.517
[995] ICJ Reports, 1992, p.608-609; 97 ILR pp.524-525
[996] Ibid p.605/p.521
[997] US v. State of Alaska, 422 US 184 (1975)
[998] Ibid. See also US v. California 381 US 139 (1965); US v. Louisiana 394 US 11 (1969); US v. M aine 471 US 375
(1985) and US v. Louisiana 470 US 93 (1985)

647

[999] Churchill and Lowe, Law of the Sea, p.45

[1000] 68 American Journal of International Law 1974, p.510
[1001] UKM IL, 57 British Yearbook of International Law, 1986, pp.581-582
[1002] Article 121(2), 1982 Convention
[1003] Eritrea/Yemen (M aritime Delimitation) 119 ILR pp.417, 463
[1004] Churchill and Lowe, Law of the Sea, p.163-164
[1005] Churchill and Lowe, Law of the Sea, p.121
[1006] ICJ Reports, 2001, paras 181-183
[1007] 83 American Journal of International Law, 1989, pp.559-561
[1008] See Part II UNCLOS, 1982
[1009] Brown, International Law of the Sea, vol. I, p.43; Churchill and Lowe, Law of the Sea, pp.71 ff., and OConnell,
International Law of the Sea, vol. I, chapter 4

[1010] OConnell, International Law of the Sea, vol. I, pp.163-164

[1011] See UKM IL, 72 British Yearbook of International Law, 2001, pp.634-639; UK adopted this practice in the
Territorial Sea Act, 1987, and the US, by way of Proclamation No.5928 in December 1988

[1012] Churchill and Lowe, Law of the Sea, pp. 182ff.

[1013] Qatar v. Bahrain, ICJ Reports 2001, para 177
[1014] Ibid
[1015] See also Dubai/Sharjah Case 91 ILR pp.543, 663
[1016] ICJ Reports 2001, para 176
[1017] OConnell, International Law of the Sea, vol.I, chapter 3 and Churchill and Lowe, Law of the Sea, chapter 4
[1018] OConnell, International Law of the Sea, vol.I, pp.60-67
[1019] Grisbadarna case, 11 RIAA p.147 (1909); the Beagle Channel case HM SO, 1977; 52 ILR p.93; Anglo Norwegian
Fisheries case, ICJ Reports 1951, pp.116, 160; 18 ILR pp. 86, 113

[1020] R. v. Keyn, (1876) 2 Ex. D. 63

[1021] Churchill and Lowe, Law of the Sea, pp. 82ff; OConnell, International Law of the Sea, vol.I, chapter 7
[1022] Articles 17 and 18, 1982 UNCLOS
[1023] OConnell, International Law of the Sea, vol. I, pp.274-297.
[1024] 84 American Journal of International Law, 1990, p.239
[1025] UKM IL, 65 British Yearbook of International Law, 1994, pp.642-647
[1026] Libya/M alta Continental Shelf case, ICJ Reports, 1985, pp. 13, 33; 81 ILR p.239 and Qatar v. Bahrain, ICJ
Reports 2001, para. 226

[1027] ICJ Reports, 1949, p.4; 16 AD p.155

[1028] Article 45(2)
[1029] Articles 38-42
[1030] Churchill and Lowe, Law of the Sea, p.113.
[1031] See Article 35 (c)
[1032] Churchill and Lowe, Law of the Sea, p. 114ff
[1033] Article 24, Convention on the Territorial Sea, 1958; Article 33, UNCLOS 1982
[1034] A. Gidel, Law M er Territoriale er la Zone Contigue, 48 HR, 1934, pp.137, 241
[1035] OConnell, International Law of the Sea, vol. II, pp. 1034-1038
648

[1036] OConnell, International Law of the Sea, vol. I, Chapter 14

[1037] Ibid. pp.559
[1038] F. O. Vicuna, The Presential Sea: Defining Coastal States Special Interests in High Seas Fisheries and Other
Activities GYIL 35 (1992), 264

[1039] ICJ Reports, 1974, pp.8, 175; 55 ILR p.238

[1040] ICJ Reports, 1974, pp. 23-29; 55 ILR p.258
[1041] 120 ILR pp.143, 190
[1042] UKM IL, 72 British Yearbook of International Law, 2001, pp.634-639
[1043] UKM IL, 72 British Yearbook of International Law, 2001, pp.634-639
[1044] ICJ Reports, 1985, p.13; 81 ILR p.238
[1045] O Connell, International Law of the Sea, vol. II, pp.1022-1025
[1046] O Connell, International Law of the Sea, vol. I, p. 578
[1047] 34 American Journal of International Law 1990, vol. I, chapters 10 and 11
[1048] William R. Slomanson, 2006. Fundamental Perspectives on International Law, 5th edn. Belmont, CA: ThomsonWadsworth, 294.

[1049] Russia and Norway Reach Accord on Barents Sea, New York Times, 28 April, 2010
[1050] Emily Cripss, The Legal Status of Ice in the Antarctic Region, 1999 Australian Law Students' Association,
http://www.alsa.asn.au/files/acj/1996/cripps.html

[1051] Shaw, p.521; See also Pinet, Paul R. (1996) Invitation to Oceanography. St. Paul, M N: West Publishing Co.,
1996, p.39 and Gross, Grant M . Oceanography: A View of the Earth. Englewood Cliffs: Prentice-Hall, Inc., 1972 p.45

[1052] Whiteman, Digest, vol. IV, p.756

[1053] See Proclamation 2667 - Policy of the United States With Respect to the Natural Resources of the Subsoil and
Sea Bed of the Continental Shelf September 28, 1945

[1054] Ibid
[1055] See Whiteman, Digest, vol. IV, p.794 to 799
[1056] In Re the Seabed and the Subsoil of the Continental Shelf Offshore Newfoundland, 5 DLR (46), p.385, Supreme
Court of Canada (1984).

[1057] North Sea Continental Shelf Case ICJ Reports, 1969, pp. 3, 22; 41 ILR, pp. 29, 51
[1058] ICJ Reports, 1985, pp. 13, 33; 81 ILR pp. 238, 265
[1059] ICJ Reports, 1969, pp. 3, 39; 41 ILR, pp. 29, 68
[1060] ICJ Reports, 1969, pp. 3, 31; 41 ILR, pp. 29, 60
[1061] See Articles 76(4), 76(5), 76(6), 76(7), 76(8) and 76(9)
[1062] ICJ Reports, 1985, pp. 13, 33; 81 ILR pp. 238, 265; See also Tunisia/Libya Case ICJ Reports 1982 pp.18, 61;
67 ILR pp.4, 54 and the Gulf of M aine Case, ICJ Reports, 1984, pp.246, 277; 71 ILR pp.57, 104

[1063] Qatar v. Bahrain, ICJ Reports 2001, paragraph 185

[1064] Article 77(4), 1982 Convention on the Law of the Sea.
[1065] OConnell, International Law of the Sea, vol. I, pp. 501-502
[1066] Churchill and Lowe, Law of the Sea, p.152
[1067] Gulf of M aine case, ICJ Reports 1984 pp.246, 299; 77 ILR pp.57, 126
[1068] ICJ Reports 1969 p.3; 41 ILR p.29
[1069] ICJ Reports 1969 p.3, 52; 41 ILR p.29, 82
649

[1070] 54 ILR p.6

[1071] ICJ Reports 1982 p.18; 67 ILR p.4
[1072] ICJ Reports 1982, p.47; 67 ILR p.40
[1073] ICJ Reports 1982, p.89; 67 ILR p. 82
[1074] ICJ Reports 1982, p.92; 67 ILR p. 85
[1075] ICJ Reports 1982, p.59; 67 ILR p. 52
[1076] ICJ Reports 1969 p.3; 41 ILR p.29
[1077] ICJ Reports 1982, p.153; 67 ILR p. 146
[1078] ICJ Reports 1984 p.246
[1079] ICJ Reports 1984 pp.299-300
[1080] ICJ Reports 1984 pp.246, 326; 71 ILR p.153
[1081] 25 ILM 1986 p.251; 77 ILR p.636
[1082] 25 ILM 1986 p.289; 77 ILR pp.675-676
[1083] ICJ Reports 1985 p.13; 81 ILR p.239
[1084] ICJ Reports 1985 p.33; 81 ILR p.265
[1085] ICJ Reports 1985 p.47; 81 ILR p.279
[1086] ICJ Reports 1982 p.18; 67 ILR p.4
[1087] ICJ Reports 1985 pp.48-50; 81 ILR p.280
[1088] ICJ Reports 1985 pp.40-40; 81 ILR p.272
[1089] 31 ILM 1992 p.1145; 95 ILR p.645
[1090] 31 ILM 1992 pp.1169-70; 95 ILR p.671
[1091] 31 ILM 1992 p.1170-71; 95 ILR p.671-673
[1092] 31 ILM 1992 p.1173; 95 ILR p.675
[1093] ICJ Reports 1984 p.246
[1094] Denmark v. Norway, ICJ Reports 1993 p.37; 99 ILR p.395
[1095] ICJ Reports 1993 pp.59-61; 99 ILR pp.427-429
[1096] ICJ Reports 1993 pp.65-69; 99 ILR pp.433-437
[1097] ICJ Reports 1993 pp.70-72; 99 ILR pp.438-440
[1098] Gulf of M aine case, ICJ Reports 1984 p.246; 71 ILR p.74
[1099] 119 ILR pp.417, 457
[1100] ICJ Reports 2001 para 226
[1101] ICJ Reports 2002 para 288
[1102] Article 1, 1958 Convention on the High Seas; Article 86, 1982 Convention on the Law of the Sea
[1103] Article 2, 1958 Convention on the High Seas; Article 89, 1982 Convention on the Law of the Sea
[1104] ICJ Reports 1951 p.116; 18 ILR p.86
[1105] UNGA Res 46/212, December 20, 1991
[1106] 33 ILM 1994, p.1461
[1107] UN Doc. A/CONF.164/33(1995)
[1108] ICJ Reports 1974 pp.253, 457; 57 ILR pp.350, 605
[1109] Corfu Channel Case, ICJ Reports 1949, pp.4, 22; 16 AD p.155; Nicaragua v. United States, ICJ Reports 1986
650

pp.14, 111-112; 76 ILR pp.349, 445

[1110] ICJ Reports 1974 p.3

[1111] UKM IL 59 BYIL 1988 p.581
[1112] Article 5 of the 1958 Convention on the High Seas, Article 91 of the 1982 Convention on the Law of the Sea
[1113], 120 ILR pp.143, 175, Case decided by the ITLOS
[1114] 120 ILR pp.143, 175-176; See also Grand Prince case, 2001, paragraphs 81ff
[1115] M /V Saiga (No.2) 120 ILR pp. 143, 176
[1116] Churchill and Lowe, Law of the Sea, pp.213ff
[1117] ICJ Reports 1960 p.150; 30 ILR p.426
[1118] Keesings Contemporary Archives, p.33952
[1119] 119 HC Deb. Col. 645, 17 July, 1987
[1120] 120 ILR pp.143, 179
[1121] Article 6 , 1958 Convention on the High Seas and Article 92, 1982 Convention on the Law of the Sea
[1122] (1948) AC 351; 13 AD p.51
[1123] PCIJ Series A No.10 1926 p.25; 4 AD p.153
[1124] Articles 8 and 9 of the 1958 Convention on the High Seas, Articles 95 and 96 of the 1982 Convention on the Law
th

of the Sea

[1125] Burke, New International Law of Fisheries, pp. 348ff

[1126] 1948 AC 351
[1127] Article 19, Convention on the High Seas, Article 105 1982 Convention on the Law of the Sea
[1128] Article 110, 1982 Convention on the Law of the Sea
[1129] PCIJ Series A No.10 1927 p.25; 4 AD p.153
[1130], 120 ILR pp.143, 175, Case decided by the ITLOS
[1131] Im Alone case, 3RIAA p.1609 (1935); 7 AD p.203; Red Crusader case 35 ILR p.485
[1132] See also US v. Biermann 83 American Journal of International Law, 1989 p.99
[1133] 6 ILM 1967 p.480
[1134] 25 ILM 1986 p.1329 and 26 ILM 1987 p.1725
[1135] US Delegation, UN Chronicle, June 1982 p.16
[1136] Shaw, p.563
[1137] Article 279
[1138] M . Akehurst, Jurisdiction in International Law, 46 British Yearbook of International Law, 1972-1973, p.145
[1139] RIAA II 829 p.838
[1140] Ibid.
[1141] A. F. Lowenfield, US Law Enforcement Abroad: The Constitution and International Law 83 American Journal
of International Law (1980) 880

[1142] RGDIP (1960) 772

[1143] 504 U.S. 655 (1992)
[1144] (1990) 82 ILR 500
[1145] 542 U.S. 507 (2004)
[1146] 548 U.S. 557 (2006)
[1147] 542 U.S. 466 (2004)
651

[1148] Cheshire and North, Private International Law, 13 ed., London 1999
[1149] Francis Hinsley, Sovereignty (London: Basic Books, 1966), p. 126; Francis Abiew, The Evolution of the Doctrine
th

and Practice of Humanitarian Intervention (The Hague: Kluwer, 1999), pp. 2627; Louis Henkin, International Law:
Politics and Values (London: M artinus Nijhoff, 1995), pp. 910; and W. M ichael Reisman, "Sovereignty and Human Rights
in Contemporary International Law," American Journal of International Law 84 (1990), p. 867.

[1150] Akehurst, Jurisdiction, pp. 179-180

[1151] Article 27, VCLT 1969
[1152] Lotus case PCIJ Series A No.10 1927 p.18; 4 AD p.153
[1153] Akehurst, Jurisdiction p. 147
[1154] 36 ILR pp.5 and 277
[1155] Akehurst, Jurisdiction p.152ff
[1156] Nationality Decrees in Tunis and M orocco Case, PCIJ Series B, No.4, 1923, pp.7, 23-24; 2 AD pp.349, 352
[1157] ICJ Reports 1951 p.116; 18 ILR p.86
[1158] ICJ Reports 1951, p.132; 18 ILR p.95
[1159] ICJ Reports 1955, pp. 4, 21-1; 22 ILR pp. 349, 357
[1160] Article 27, VCLT 1969
[1161] Akehurst, Jurisdiction p.152ff
[1162] M aharani Seethadevi Gaekwar of Baroda v. Wildenstein (1972) 2 All ER 689
[1163] Akehurst, Jurisdiction p.177
[1164] Compania Naviera Vascongado v. Cristina SS [1938] AC 485, 496-497; 9 AD pp.250, 259
[1165] Congo v. Belgium, ICJ Reports 2002 Para 4 (separate opinion of Judge Guillaume)
[1166] Lotus case, PCIJ Series A, No. 10
[1167] CR 92/3 pp. 11-12 UKM IL; 63 BYIL 1992 p.722
[1168] Board of Trade v. Owen (1957) AC 602, 634 and DPP v. Stonehouse (1977) 2 All ER 909, 916; 73 ILR p.252
[1169] Libman v. The Queen (1985) 21 CCC (3d) 206; Somchai Liangsiriprasert v. The United States (1991) 1 AC 225
[1170] See Extraterritorial Criminal Jurisdiction, Council of Europe, 1990
[1171] See for instance, New Zealand Crimes Act, 1961; Indian Penal Code 1860
[1172] 21 DLR (4 ) 174 SCC 1986
[1173] PCIJ Series A No.10 1927; 4 AD p.153
[1174] PCIJ Series A No.10 1927 p.20
[1175] H. Lauterpacht, International Law: Collected Papers, Cambridge 1970, vol. I. pp.488-490
[1176] PCIJ Series B No.4, 1923; 2 AD p.349
[1177] ICJ Reports, 1955, pp.4, 23; 22 ILR pp.349, 360
[1178] United States v. Wong Kim Ark 69 US 649
[1179] In re Thenault 47 F. Supp. 952 (1942); See also Article 12, Convention on Conflict of Nationality Law, 1930
[1180] Article 15, UDHR; For children, the ICCPR explains under Article 24(3) and Article 7 of the Convention on the
th

Rights of the Child, 1989

[1181] Paul Weis, Nationality and Statelessness in International Law, 1979 Sijthoff & Noordhoff International Publishers
(The Netherlands) pp. 3-4

[1182] Re Gutierrez 24 ILR p.265; Public Prosecutor v. Antoni 32 ILR p.140

[1183] M oore, Digest of International Law,
[1184] PCIJ Series A No.10 1927, p. 92; 4 AD p.153
652

[1185] 147 D.L.R.4th 298 (N.S.C.A. 1997) (Can.)

[1186] Blakesley, Jurisdictional Issues and Conflicts of Jurisdiction, pp. 172 et seq.
[1187] 509 F. Supp 212 (1981); See also Atkinson v. M inistere Public 100 International Law Reports 610
[1188] Lowe, Jurisdiction, 351-352
[1189] James L. Brierly, The Lotus Case (1928) 44 Law Quarterly Review 154, 161
[1190] Rohrig, Brunner and Heinze (1950) 17 ILR 393
[1191] XII LRTWC 122
[1192] George Brand, Trial of Heinrich Gerike (London 1950)
[1193] Attorney General of Israel v. Eichmann 36 ILR 18, 54-57, 304
[1194] Rees v. Secretary of State or the Home Department (1986) 2 All ER 321
[1195] Keesings Contemporary Archives, p.34078
[1196] 681 F. Supp. 896 (1988); 82 ILR p.344
[1197] In re Urios 1 AD p.107
[1198] Third Restatement, para 402. [see Comment g and Reporters note 3, at p. 240]
[1199] 147 D.L.R.4th 298 (N.S.C.A. 1997) (Can.)
[1200] Case No. 2 Bgs 38/91 94 International Law Reports 68, 76-81 (German Federal Supreme Court)
[1201] 1919-1922 Annual Digest 107
[1202] Donnedieu De Vabres, Les Principles Modernes Du Droit International Penal (1928) p. 95
[1203] Encyclopedie Dalloz, (1985)
[1204] (1946) AC 347 at 372
[1205] (1990) 2 All ER 866 (PC)
[1206] 182 F. Supp 479 (1960); 288 F. 2d 545 (1961)
[1207] M c Ginley, The Achille Lauro Affair: A Case Study in Crisis Law, Policy and M anagement at pp.341-345, in
M . Cherif Bassiouni, Legal Responses to International Terrorism: U.S. Procedural Aspects, M artinus Nijhoff Publishers,
1988

[1208] Attorney General of Israel v. Eichmann 36 ILR 18, 54-57, 304

[1209] Dahm, Zur Problematik des Voelkerstafrechts, (1956) p. 28
[1210] PCIJ Series A No.10 1927, p. 92; 4 AD p.153
[1211] Democratic Peoples Republic of Congo v. Belgium ICJ Reports 2002 p. 3
[1212] Roth, Kenneth "The Case For Universal Jurisdiction". Foreign

Affairs. (September/October 2001)

http://www.foreignaffairs.org/20010901faresponse5577/kenneth-roth/the-case-for-universal-jurisdiction.html.

[1213] In Re Piracy Jure Gentium [1934] AC 586; 7 AD p.213

[1214] Article 105 of the 1982 Convention on the Law of the Sea
[1215] D. H. Johnson, Piracy in M odern International Law, 43 Transactions of the Grotius Society, 1957, p.63
[1216] In Re Piracy Jure Gentium [1934] AC 586; 7 AD p.213
[1217] Attorney General of Israel v. Eichmann 36 ILR 18, 54-57, 304; Nuremberg Trials The Trial of German M ajor War
Criminals - Proceedings of the International M ilitary Tribunal Sitting at Nuremberg Germany. 1 (20th November, 1945 - 1st
December, 1945). London: His M ajesty's Stationery Office. 1946. pp. 50.

[1218] Calley v. Calloway 382 F.Supp 650 (1974) revd 519 F.2d 184 (1975)
[1219] UNGA Res 95 (1)
[1220] Attorney General of Israel v. Eichmann 36 ILR 18, 54-57, 304
[1221] Shaw, p.595
653

[1222] I.A. Shearer, Starke's international law

[1223] S/25221, 2 February 1993
[1224] Article 8
[1225] Report of the ILC, A/51/10, 1996, p. 51
[1226] Hedges, Chris (August 12, 1993). Israel Recommends that Demjanjuk Be Released. The New York Times.
[1227] Reich, Sharon (April 3, 2009). "U.S. judge stays Demjanjuk deportation". Reuters.
nd

http://www.reuters.com/article/worldNews/idUSTRE5326L620090403. Retrieved April 3, 2009.

[1228]

"Spain
requests
warrant
for
alleged
Nazi
war
criminal".
http://www.cnn.com/2011/WORLD/europe/01/15/spain.nazi.warrant/index.html. Retrieved 2011-01-15.

www.cnn.com.

[1229] UNSC Res 955 (1994)

[1230] 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft; 1970 Convention for the
Suppression of Unlawful Seizure of Aircraft; 1971 Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation; 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons;
1979 International Convention against the Taking of Hostages; 1980 Convention on the Physical Protection of Nuclear
M aterial; 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation,
supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1988
Convention for the Suppression of Unlawful Acts against the Safety of M aritime Navigation; 1997 International Convention
for the Suppression of Terrorist Bombings; 1999 International Convention for the Suppression of the Financing of Terrorism.

[1231] CR 92/3 pp.11-12 UKM IL, 63 BYIL, 1992,p.722; See also UNSC Res 748, 31/3/1992
[1232] Akehurst, Jurisdiction, pp. 160-161
[1233] Ex Parte Pinochet (No.3) (2000) 1 AC 147, 275
[1234] A. Cassesse, When may Senior State Officials be Tried for International Crimes? 13 European Journal of
International Law, 2002 pp.853, 856.

[1235] ICJ Reports 2002 paras 41 and 42

[1236] See 1984 Torture Convention; Convention on the Prevention and Punishment

of Crimes against Internationally

Protected Persons, including Diplomatic agents, 1973; International Convention against the Taking of Hostages, 1979;
Convention on the Safety of United Nations and Associated Personnel, 1994; Tokyo Convention on Offences and Certain
Other Acts Committed on Board Aircraft, 1963; Hague Convention for the Suppression of Unlawful Seizure of Aircraft,
1970; M ontreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1970, for example

[1237] Lockerbie case ICJ Reports 1992 pp. 3, 24; 94 ILR pp. 478, 507
[1238] 11 Eur. Ct. H.R. (ser. A) (1989)
[1239] W.C. Gilmore, Mutual Assistance in Criminal and Business Regulatory Matters, 1995
[1240] Article 2(4) read with Article 51, UN Charter
[1241] Attorney General of Israel v. Eichmann 36 ILR 18, 54-57, 304
[1242] 119 US 436 (1886)
[1243] 342 US 519 (1952)
[1244] 500 F. 2d 267 (1974); 61 ILR p.190
[1245] 510 F.2d 62 (1975); 61 ILR p.206
[1246] 119 L Ed 2d 441 (1992); 95 ILR p.355
[1247] (1986) 1 QB 95
[1248] (1993) 2 WLR 90; 95 ILR p.380
[1249] R v. Latif, (1996) 1 WLR 104
[1250] Piano/Esteri/2005/11 Novembre/11/imam.shtml "Foto della Cia svela il sequestro dell'imam", Corriere della Sera,
12 novembre 2005.

[1251] Cuban Liberty and Democratic Solidarity (Libertad) Act, 1996

654

[1252] S. Sucharitkul, Immunities of Foreign States before National Authorities, RdC 149 (1976), 87
[1253] A. Watts, The Legal Position in International Law of Heads of State, Heads of Governments and Foreign
M inisters, 247 HR 1994 III p.13

[1254] Ex Parte Pinochet (No.3) [2000] 1 AC 147, 201

[1255] 7 Cranch 116 (1812)
[1256] [2000] 1 AC 147, 201; See also Holland v. Lampen-Wolfe [2000] 1 WLR 1573, 1588; 119 ILR p.367
[1257] H. Steinberger, Immunity Case (German Federal Constitutional Court, 1977), EPIL II (1995), 943-945
[1258] Article 10
[1259] Article 11
[1260] Article 12
[1261] Article 13
[1262] Article 14
[1263] Article 15
[1264] Article 16
[1265] Article 17
[1266] M ighell v. Sultan of Johore (1894) 1 QB 149
[1267] Letter of Acting Legal Adviser, J. B. Tate to Department of Justice, M ay 19, 1952, Dept. State Bull, 26 984
(1952)

[1268] (1880) 5 PD 197

[1269] ILM 11 (1972), 470, AJIL 66 (1972), 923
[1270] Buttes Gas and Oil Co. v. Hammer (No. 3), [1982] AC 888
[1271] H.Steinberger, State Immunity, EPIL 10 (1987), 428, at 432
[1272] 109 S.Ct. 683 (1989)
[1273] Specifically, United States (1976 Foreign Sovereign Immunities Act, section 1603(d)) and in the UK

(Trendtex
Trading Corporation v. Central Bank of Nigeria, [1977] QB 529, 558, 579; I Congreso del Partido, [1981] 3 WLR 328, 335,
337, 345, 349, 350, 351; section 3(3) SIA.

[1274] H.Ogunniran, The Successive Demise of the Doctrine of State Immunity from Tort Liability: A Comparative
Appraisal with Emphasis on the Nigerian Experience, AJICL 4 (1992), 36994

[1275] W.F.Pepper, Iraqs Crimes of State Against Individuals and Sovereign Immunity, Brooklyn JIL 18 (1992), 31384
[1276] I.Brownlie, Principles of Public International Law, 4th edn 1990, Chapter XV; sections 6 and 7 SIA
[1277] International Association of M achinists & Aerospace Workers v. OPEC 649 F. 2d 1354, 1359; 66 ILR pp. 413,
418

[1278] Difference Relating to Immunity from Legal Process case, ICJ Advisory Opinion, ICJ Reports, 1999, pp. 62, 88.
[1279] Siderman v. Republic of Argentina 965 F. 2d 699 (1992); 103 ILR p. 454
[1280] Kuwait Airways Corporation v. Iraqi Airways Co. (No.3) 1998 (1999) CLS 31
[1281] Buck v. A-G [1965] Ch 745
[1282] CND v. Prime M inister [2002] EWHC 2759, QB
[1283] Buttes Gas and Oil Co. v. .Hammer [1981] 3 All ER 616; Kuwait Airways Corporation v. Iraqi Airways Co.
[1995] 1 WLR 1147

[1284] International Association of M achinists & Aerospace Workers v. OPEC 649 F. 2d 1354, 1359; 66 ILR pp. 413,
418

[1285] M .Pugh, Legal Aspects of the Rainbow Warrior Affair, ICLQ 36 (1987), 65569, at 6603
655

[1286] R v. M adan [1961] QB 1, 7; Aziz v. Republic of Yemen [2005] EWCA Civ 745, para. 48; A Company

v.

Republic of X [1990] 2 LL. R 520; 87 ILR, p. 412

[1287] 124 ILR pp.427, 435

[1288] (1996) 1 LL. R 104; 107 ILR p. 536
[1289] [2000] 1 WLR 1573, 1588; 119 ILR p.384
[1290] [2006[ UKHL 26 para (; 129 ILR p.717
[1291] 123 ILR p.24
[1292] 123 L Ed 2d 47, 61 (1993); 100 ILR pp. 544, 553
[1293] Flatow v. Islamic Republic of Iran 999 F. Supp 1 (1998); 121 ILR p.618; Alejandre v. Republic of Cuba 996 F.
Supp 1239 (1997); 121 ILR p.603

[1294] 4700 F.3d 356 (2006)

[1295] Richard Garnett, The Defence of State Immunity for Acts of Torture, 1997 AUSTL. Y.B. INTL L. 97, 12324;
Hari
M . Osafsky, 11 N.Y. INTL L. REV. 35 (1998); Georg Ress, The Changing Relationship Between State Immunity and Human
Rights, in THE BIRTH OF EUROPEAN HUM AN RIGHTS LAW: STUDIES IN HONOUR OF CARL AAGE
NRGAARD 175 (M ichele de Salvia & M ark E. Villiger eds., 1998)

[1296] G.M attingley, RenaissanceDiplomacy, London, 1955, andD. Elgavish, Did Diplomatic Immunity Exist in the
Ancient Near East?, 2 Journal of the History of International Law, 2000, p. 73. See also Watts, Legal Position.

[1297] Herodotus records that when heralds of the Persian king Darius the Great demanded "earth and water" (i.e.,
symbols of submission) of various Greek cities, the Athenians threw them into a pit and the Spartans threw them down a
well for the purpose of suggesting they would find both earth and water at the bottom, these often being mentioned by the
messenger as a threat of siege. A Roman envoy was urinated on as he was leaving the city of Tarentum. The oath of the
envoy: "This stain will be washed away with blood!" was fulfilled during the Second Punic War. The arrest and ill-treatment
of the envoy of Raja Raja Chola by the Kulasekhara dynasty (Second Cheras) king led to a naval war called Kandalur War in
994 CE.

[1298] First Fidelity Bank NA v. Government of Antigua and Barbuda Permanent M ission 877 F.2d 189 (1989); 99 ILR,
p. 125

[1299]
[1300] Tehran Hostages case (USA v. Iran), ICJ Rep. 1980, 3, at 24
[1301] US Diplomatic and Consular Staff in Tehran case ICJ Reports, 1980, p. 3; 61 ILR, p. 504
[1302] 500 UNTS 95, AJIL 55 (1961), 1064
[1303] 767 Third Avenue Associates v. Permanent M ission of the Republic of Zaire to the United Nations 988 F.2d 295
(1993); 99 ILR, p. 194

[1304] Yearbook of the ILC, 1958, vol. II, pp. 945

[1305] Democratic Republic of the Congo v. Uganda, ICJ Reports, 2005, pp. 168, 274
[1306] Article 2, Vienna Convention 1961.
[1307] EritreaEthiopia Claims Commission, decision of 19 December 2005, Partial Award, Eritreas Claim 20, paras.
40ff.

[1308] See UNSC Res 748 (1992); UNSC Res 1333 (2000) for example
[1309] Article 8 (2), Vienna Convention on Diplomatic Immunities 1961
[1310] Article 16 (2)
[1311] Ian Brownlie, Principles of International Law, 4 ed. (Oxford University Press, Oxford) 1990 p.348
[1312] R v. Turnbull, ex-Parte Petroff 16 FLR 438 (1971); J G Starke, Introduction to International Law, 10
th

(Butterworths, London) 1989

[1313] Yearbook of the ILC (1958) pp. 94-95

656

th

ed.

[1314] 767 Third Avenue Associates v. Permanent M ission of the Republic of Zaire to the United Nations 988 F.2d 295
(1993); 99 ILR, p. 194

[1315] A. D. M cNair, International Law Opinions, Oxford, 1956, vol. I, p. 85.

[1316] Clifford Krauss, "Rescue's Architect: Fujimori's Shadowy Alter Ego; An intelligence chief goes from political
peril to 'man of the hour.'", New York Times April 28, 1997. p. A6.

[1317] See Boos v. Barry 99 L.Ed.2d 333, 3456 (1988); 121 ILR, p. 551
[1318] Ibid
[1319] Ibid
[1320] ICJ Reports, 1980, pp. 3, 301; 61 ILR, p. 556
[1321] Belgium v. Nicod and Another 82 ILR, p. 124
[1322] ICJ Reports, 2005, paras. 3378 and 340
[1323] 7 Whiteman 387
[1324] UNSC Res 667, September 16, 1990
[1325] 56 British Yearbook of International Law 435 (1985)
[1326] C. Warbrick, Current Developments, 38 ICLQ, 1989, p. 965.
[1327] 83 ILR 231
[1328] ICJ Reports, 1950, pp. 266, 2745.
[1329] Diplomatic Immunities and Privileges, M isc. 5 (1985), United Kingdom Command papers, 9497, p.21
[1330] Eileen Denza, Diplomatic Law (Oceana Publications Inc., Dobbs Ferry) 1976 p.225
[1331] A. Akinsanya, 34 ICLQ 602 (1985)
[1332] GAOR 44 Session, Supp. 10, p.26
[1333] Paul G. Booth, Satows Guide to Diplomatic Practice (1979) p.118
[1334] US v. Noriega 746 F.Supp. 1506, 15235; 99 ILR, pp. 145, 1657
[1335] Eileen Denza, A Commentary on the Vienna Convention on Diplomatic Relations Book, 1998, pp. 256 ff.
[1336] See UNGA Res 53/97, January 1999; UNGA Res 42/154; Secretary Generals Reports A/INF/52/6, Addition 1
th

and A/53/276 and Corr.1

[1337] US Supreme Court in Boos v. Barry 99 L Ed 2d 333, 346 (1988); 121 ILR, pp. 499, 556.
[1338] SC/6573 (15 September 1998)
[1339] Carol Edler Baumann, The diplomatic kidnappings: A revolutionary tactic of urban terrorism, Brill Archive, 1973,
p.78

[1340] Articles 2, 3, 6 and 7. Such crimes are by article 8 deemed to be extraditable offences in any extradition treaty
between states parties. See Duff v. R [1979] 28 ALR 663; 73 ILR, p. 678

[1341] ICJ Reports, 1980, pp. 3, 32, 357; 61 ILR, p. 530.

[1342] ICJ Reports, 2005, paras. 33840
[1343] United States Diplomatic and Consular Staff in Tehran ICJ Reports 1980 p.40
[1344] Article 31, Vienna Convention on Diplomatic Immunities, 1961; Dickinson v. Del Solar [1930] 1 KB 376; 5 AD
p.299; the Iranian Hostages Case, ICJ Reports, 1980, pp.3, 37; 61 ILR p.530 and Skeen v. Federative Republic of Brazil 566
F. Supp. 1414 (1983); 121 ILR p.481

[1345] Portugal v. Goncalves 82 ILR, p. 115

[1346] Tabion v. M ufti 73 F.3d 535; De Andrade v. De Andrade 118 ILR, pp. 299, 3067,
[1347] Denza, Diplomatic Law, pp. 391 ff
[1348] Article 37
657

[1349] Public Prosecutor v. JBC 94 ILR, p. 339

[1350] Tabatabai case, 80 ILR, p. 388; US v. Guinand 688 F.Supp. 774 (1988); 99 ILR, p. 117; Empson v. Smith [1965]
2 All ER 881; 41 ILR, p. 407 and Shaw v. Shaw [1979] 3

[1351] [1971] 2 QB 274

[1352] The Times 5 October 1977
[1353] Article 32(2) Public Prosecutor v. Orhan Olmez 87 ILR, p. 212
[1354] Department of State Guidance for Law Enforcement Officers With Regard to Personal Rights and Immunities
of Foreign Diplomatic and Consular Personnel 27 ILM , 1988, pp. 1617, 1633

[1355] Fayed v. Al-Tajir [1987] 2 All ER 396

[1356] Ibid at p.411-412
[1357] A Company v. Republic of X [1990] 2 LL. R 520, 524; 87 ILR pp.412, 416
[1358] M cClanahan, Diplomatic Immunity, p. 137
[1359] M cClanahan, Diplomatic Immunity, pp. 1567.
[1360] [1941] 1 KB 454
[1361] UKM IL 70 BYIL 1999 p.530
[1362] 43 AJIL 37 (1949)
[1363] P.C.Szaz, International Organizations, Privileges and Immunities, EPIL II (1995), 132533
[1364] Barberis, Julio A: Los Sujetos del Derecho Internacional Actual Editorial Tecnos. M adrid. 1984, p. 27
[1365] Francisco de Vitoria: Relecciones Teolgicas (1538-1539); Francisco Suarez: De Legibus ac Deo Legislatore
(1612); Hugo Grotius: De jure belli ac pacis (1625).

[1366] ICJ Reports 1949, p. 174.

[1367] Hans Kelsen: Principles of International Law. Second Edition. Holt, Rinehardt and Winston, Inc. 1952, p.180.
[1368] W. G. Grewe, The Epochs of International Law (New York: de Gruyter, 2000)
[1369] W. Friedmann, The Changing Structure of International Law, (London: Stevens, 1964) 60-71.
[1370] H. M osler, The International Society as a Legal Community (Alphen aan den Rijn: Sijthoff and Noordhoff, 1980)
[1371] I.Brownlie (ed.), Basic Documents on Human Rights, 3 edn, 1992. See further T.M eron (ed.), Human Rights in
rd

International Law: Legal and Policy Issues, 2 vols 1984; B.G.Ramcharan, The Concept and Present Status of the
International Protection of Human Rights Forty Years After the Universal Declaration, 1989; A.Cassese, Human Rights in a
Changing World, 1990; H. Lauterpacht, International LawandHuman Rights, London, 1950;D.Weissbrodt,
J. Fitzpatrick and F. Newman, International Human Rights, 3rd edn, Cincinnati, 2001; J.Rehman, International Human Rights
Law, London, 2002

[1372] M .v.Gelderen, The Challenge of Colonialism: Grotius and Vitoria on Natural Law and International Relations,
Grotiana 14/5 (1993/4), 337.

[1373] J. L. Brierly, Law of Nations, 6 ed. (Waldock, (ed.)) Clarendon Press, Oxford, 1963, pp.276-291
[1374] S. K. Verma, An introduction to public international law, PHI Learning Pvt. Ltd., 2004, p.217
th

[1375] A.E.M ayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct, M ichigan
Journal of International Law 15 (1994), 307404

[1376] Ibid
[1377] D.A.Bell, The East Asian Challenge to Human Rights: Reflections on an East West Dialogue, HRQ 18 (1996),
64167

[1378] Rhoda Howard, The Full belly Thesis: Should Economic Rights Take Priority over Civil and Political Rights?
Evidence from Sub-Saharan Africa, Human Rights Quarterly Vol. 5, No. 4 (Nov., 1983), pp. 467-490

[1379] M iha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 10 August 1994, Human Rights Committee, para. 63
658

[1380] Ambatielos case, 23 ILR p.306; the Finnish Ships case, 3 RIAA p.1479; 7 AD p.231, and the Interhandel Case
ICJ Reports 1959, pp.26-27; 27 ILR pp.475, 490.

[1381] Robert Brown Case 6 RIAA p.120; 2 AD p.66; Salem Case 2 RIAA p.1161; 6 AD p.188; the Nielsen Case, 2
Yearbook of the ECHR p.413; 28 ILR p.210 and the Second Cyprus Case (Greece v. UK), 2 Yearbook of the ECHR p.186

[1382] Johnston v. Ireland, European Court of Human Rights, Series A, No. 112 (1986); 89 ILR p.154; Open Door and
Dublin Well Woman v. Ireland, European Court of Human Rights, Series A, No. 246 (1992)

[1383] See specifically articles 6, 7, 8, 11, 15, 16 and 18.

[1384] Namibia Case (1971), ICJ Rep.1971, 16345, at 57, para. 131.
[1385] UNGA Res 217 A (III), GAOR, 3 Session, Official Records, Part I, Resolutions, p.71
[1386] Byelorussian SSR, Czechoslovakia, Poland, Ukrainian SSR, USSR, Yugoslavia and Saudi Arabia abstained
[1387] Corfu Channel case (M erits) 1949 ICJ Rep p.4 at 22
[1388] UN Conference on Human Rights at Tehran, 1968- resolution was passed holding that the Universal Declaration
rd

of Human Rights, constitutes an obligation for the members of the international community. AJIL 63 (1969), 674

[1389] 23 GAOR A//Conf.32/41

[1390] In re Flesche 16 AD, pp. 266, 269; The State (Duggan) v. Tapley 18 ILR, pp. 336, 342; Robinson v. SecretaryGeneral of the UN 19 ILR, pp. 494, 496; Extradition of Greek National case, 22 ILR, pp. 520, 524 and Beth ElM ission
v.M inister of Social Welfare 47 ILR, pp. 205, 207. See also Corfu Channel case, ICJ Reports, 1949, pp. 4, 22; 16 AD, pp.
155, 158 and Filartiga v. Pena-Irala 630 F.2d 876 (1980).

[1391] E.W.Vierdag, Some Remarks about Special Features of Human Rights Treaties, NYIL 25 (1994), 11942
[1392] UN Treaty Collection: International Covenant on Civil and Political Rights". UN. 2010-12-30.
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en

[1393] Articles 2(2) and 2(3)

[1394] Article 2(1)
[1395] Article 3
[1396] "UN Treaty Collection:

International Covenant on Civil and Political Rights". UN. 2010-12-30.

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. Retrieved 2009-10-12.

[1397] Ibid
[1398] Ibid
[1399] Ibid
[1400] Ibid
[1401] "UN Treaty

Collection: International Covenant on Economic, Social and Cultural Rights". UN. 2009-02-24.
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en. Retrieved 2009-02-25.

[1402] Ibid.
[1403] Ibid
[1404] Ibid
[1405] Ibid
[1406] Ibid
[1407] 78 UNTS 277; ILM 28 (1989), 754
[1408] Auron, Yair, The Banality of Denial, (Transaction Publishers, 2004), 9.
[1409] See, for example, USSRs objection. Robert Gellately & Ben Kiernan (2003). The Specter of Genocide: M ass
M urder in Historical Perspective. Cambridge, UK: Cambridge University Press. pp. 267

[1410] Bosnia and Kerzegovina v. Serbia and M ontenegro [2007] Judgment, ICJ General List No. 91, p. 108
[1411] M orton, Jeffrey S. (2000). The International Law Commission of the United Nations. University
Carolina Press. pp. 27.

659

of South

[1412] Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples United Nations, Permanent Forum
on Indigenous Issues.

[1413] 1967 ECOSOC Res. 1235 (XLII)

[1414] For example: Public investigations against Iran, in 1990; Sub-Commission on the Prevention of Discrimination
and Protection of M inorities was directed by an ECOSOC resolution in 1971 to appoint a working group to deal with
individual petitions appearing to reveal a consistent pattern of gross violations of human rights. ( 1971 ECOSOC Res. 1503
(XXVIII))

[1415] M .J.Bossuyt, Guide to the Travaux Prparatoires of the International Covenant on Civil and Political Rights,
1987

[1416] C.Tomuschat, Human Rights, States Reports, in Wolfrum UNLPP I, 62837

[1417] A.Eide/ C.Krause/A.Rosas (eds), Economic, Social and Cultural RightsA Textbook, 1994
[1418] Vienna Convention on Consular Relations Case (Para. v. U.S.), 1998 ICJ 248 (Apr. 9); The La Grand case(F.R.G.
v. U.S.), 2001 ICJ 104 (June 27).

[1419] Applicability

of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, 1998 I.C.J. 177, 200 (Dec. 15); Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, 1999 I.C.J. 62 (Apr. 26).

[1420] 1996 ICJ 240

[1421] (F.R.G. v. U.S.), 2001 ICJ 104 (June 27).
[1422] Belgium v. Spain (Second Phase), ICJ Rep. 1970, 3, paras. 334.
[1423]
[1424] Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Advisory Opinion of 28 May 1951, [1951] ICJ Rep. 15

Rwanda), Preliminary Objections, Judgment of 3 February 2006

[1425] Bosnia and Herzegovina v. Yugoslavia (Serbia and M ontenegro) ICJ Reports, 1993, pp. 3 and 325; 95 ILR, pp. 1
and 43.

[1426] ICJ Reports, 1951, pp. 15, 23; 18 ILR, pp. 364, 370
[1427] ICJ Reports, 1993, pp. 3, 24; 95 ILR, pp. 1, 39.
[1428] ICJ Reports, 2007, paragraphs 427-431
[1429] South West Africa, Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6; Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16; Western Sahara, Advisory Opinion of 16 October 1975,
[1975] ICJ Rep. 12.

[1430] Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16

[1431] Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12.
[1432] Rights of M inorities in Upper Silesia (M inority Schools) (Germany v. Poland), PCIJ Rep. Series A No.15, at 17.
[1433] PCIJ, Series A/B, No. 64, p. 19 (1935); 8 AD, pp. 386, 38990.
[1434] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9
July 2004, [2004] ICJ Rep. 136.

[1435]

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), M erits,
Judgment of 19 December 2005

[1436] (2001) AHRLR 60 (ACHPR 2001)

[1437] G. J. Naldi, Interim M easures of Protection in the African System for the Protection ofHuman and Peoples
Rights, 2 African Human Rights Law Journal, 2002, p. 1. The Commission has taken the view that the adoption of interim
measures is binding on the parties: see e.g. Saro-Wiwa v. Nigeria, 7 International Human Rights Reports, 2000, p. 274.

[1438] D. Padilla, An African Human Rights Court: Reflections from the Perspective of the Inter-American System, 2
AfricanHuman Rights Law Journal, 2002, p. 185; R.W. Eno, The Jurisdiction of the African Court on Human and Peoples
Rights, 2 African Human Rights Law Journal, 2002, p. 223, and R. M urray, A Comparison Between the African and

660

European Courts of Human Rights, 2 African Human Rights Law Journal, 2002, p. 195.

[1439] Katangese Peoples Congress v. Zaire Case No. 75/92: see 13 NQHR, 1995, p. 478
[1440] Articles 279.
[1441] J.M . Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, Cambridge, 2003;
H. J. Steiner, P. Alston and R. Goodman, International Human Rights in Context, 3rd edn, Oxford, 2008, pp. 1020 ff.; The
Inter-American System of Human Rights (eds. D. J. Harris and S. Livingstone), Oxford, 1998

[1442] David Adams, "Inching toward justice in Colombian killings," St. Petersburg Times 9 November 2008
[1443] Annual Report 19923, pp. 539 ff. See also e.g. AG/Res.443, 1979, AG/Res.666, 1983, AG/Res.547, 1981,
AG/Res.624, 1982 and AG/Res.644, 1983 (torture).

[1444] Annual Report 2006, chapter IID, paras. 49 ff.

[1445] Article 25, Annual Report 2001, chapter III C. I and Annual Report 2006, chapter III C I.
[1446] Annual Report 2006, chapter III E and see also 45 ILM , 2006, pp. 669 ff.
[1447] Aleman Lacayo v.
Nicaragua case, Series E, Order of 2 February 1996; the Alvarez et al. v. Colombia case, Series E, Order of 22 July 1997, and
the Constitutional Court case, Series E, Order of 14 August 2000.

[1448] 20 ILM , 1981, p. 1424; 67 ILR, p. 578.

[1449] 9 HRLJ, 1988, p. 212; 95 ILR, p. 232
[1450] H/Inf (90) 1, p. 80; 95 ILR, p. 320
[1451] Loayza Tamayo v. Peru Series C, No. 33, 1997; 116 ILR p.338
[1452] 14M arch2001, 41 ILM , 2002,p. 93
[1453] 22 ILM , 1983, p. 51; 67 ILR, p. 594
[1454] 22 ILM , 1983, p.33; 67 ILR, p. 559.
[1455] 7 HRLJ, 1986, p. 74; 75 ILR, p. 31
[1456] 9 HRLJ, 1988, p. 94; 96 ILR, p. 392.
[1457] 28 ILM , 1989, p. 378; 96 ILR, p. 416.
[1458] Right to Information on Consular Assistance opinion requested by M exico Series A 16, OC-16/99, 1999
[1459] Some Powers of the Inter-American Commission on Human Rights, Advisory Opinion OC-13/93 of 16 July
1993, Series A, No. 13, para. 26

[1460] Annual Report 1994, pp. 199 ff

[1461] http://www.asean.org/publications/TOR-of-AICHR.pdf
[1462] See e.g. M . Rishmawi, The Revised Arab Charter on Human Rights: A Step Forward?, 5 Human Rights Law
Review, 2005, p. 361, and R. K. M . Smith, Textbook on International Human Rights, Oxford, 2002, p. 87. See also
Robertson andM errills,Human Rights in the World, p. 238, and A. A. A. Naim, Human Rights in the ArabWorld: A Legal
Perspective, 23 HRQ, 2001, p. 70.

[1463] Tyrer case, Series A, vol. 26, 1978; 58 ILR, p. 339, and see also the M arckx case, Series A, vol. 31, 1979; 58 ILR,
p. 561, although not to the extent of adding new rights or new jurisdictions thereby, see Johnston v. Ireland, Judgment of 18
December 1986 and Bankovic v. Belgium, Judgment of 12 December 2001, 123 ILR, p. 94. See also below, chapter 16, p.
937; Loizidou v. Turkey, Series A, vol. 310, 1995, p. 23; 103 ILR, p. 622.

[1464] Soering v. UK, Series A, vol. 161, 1989, pp. 356; Drozd and Janousek v. France and Spain, Series A, vol. 240,
1992, p. 29. See also Issa v. Turkey, Judgment of 30M ay 2000, and O calan v. Turkey, Judgment of 14 December
2000.

[1465] M .M ohr, The Turin Protocol of 22 October 1991: A M ajor Contribution to Revitalizing the European Social
Charter, EJIL 3 (1992), 36370.

[1466] M . C. Bassiouni, Crimes Against Humanity in International Criminal Law, 2 edn, The Hague, 1999.
[1467] In re Piracy Jure Gentium [1934] AC 586; 7 AD, p. 213. See also D. H. Johnson, Piracy in
nd

661

M odern

International Law, 43 Transactions of the Grotius Society, 1957, p. 63

[1468] Report of the Commission to the Preliminary Peace Conference, 14 AJIL, 1920, p. 95.
[1469] C.M ullins, The Leipzig Trials, London, 1921
[1470] A/2693, and 45 AJIL, 1954, Supp., p. 123
[1471] 36 ILR p.31
[1472] H. Levie, Terrorism in War: The Law of War Crimes, New York, 1992, pp. 72 ff.
[1473] A. P. V. Rogers, War Crimes Trials under the Royal Warrant, British Practice 19451949, 39 ICLQ, 1990, p. 780
[1474] As mentioned under article 49 of the First Geneva Convention, article 50 of the Second Geneva Convention,
article 129 of the Third Geneva Convention and article 146 of the Fourth Geneva Convention

[1475] As mentioned under article 50 of the First Geneva Convention, article 51 of the Second Geneva Convention,
article 130 of the Third Geneva Convention and article 147 of the Fourth Geneva Convention.

[1476] Article 85 of Protocol I

[1477] See Articles 2, 16, 17, 18, 19 and 20.
[1478] UNSC Resolutions 794 (1992) and 814 (1993)
[1479] UNSC Res 674 (1990)
[1480] Article 21, ICTY Statute; Article 20, ICTR Statute; Article 55, ICC Statute.
[1481] Robert Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmhurst, Introduction to International Criminal Law,
Cambridge University Press, 2nd Edition, pp. 188 ff.

[1482] IT-94-1-T, para. 644, 112 ILR, pp. 1, 214

[1483] ICTR-96-4-T, 1998, para. 580
[1484] See also the Blaskic Case IT-95-14-T, 2000, paras. 2034, 122 ILR, pp. 1, 78
[1485] See the Kunarac case IT-96-23&23/1, 2002 para. 98
[1486] IT-95-11-T, 2007, paras. 556
[1487] T. M arcus Funk, Victims' Rights and Advocacy at the International Criminal Court. Oxford, England: Oxford
University Press. (2010) p. 1

[1488] Kambanda, ICTR-97-23-S, 1998, paras. 3940

[1489] IT-95-10, para. 66
[1490] ICTR-96-4-T, 1998, para. 498
[1491] ICTR-97-32-I, 2000, para.14
[1492] IT-98-33-T, 2001, para. 589
[1493] IT-98-33-A, 2004, para. 8
[1494] Ibid para.25
[1495] Stakic, IT-97-24-T, 2003, para. 515; Eichmann case, 36 ILR, p. 5; Brdjanin case, IT-99-36-T, 2004, para.118
[1496] Akayesu Case, ICTR-96-4-T, para. 731
[1497] See generally Gary D. Solish (2010) The Law of Armed Conflict: International Humanitarian Law in War,
Cambridge University Press

[1498] IT-94-1-T, Decision of 2 October 1995, para. 70, 105 ILR, pp. 453, 486
[1499] Ibid.
[1500] Ibid., para. 129
[1501] Ibid., para. 94. Subsequently upheld in the Galic case, IT-98-29-T, 2003, para. 11 and the Kanyabashi decision
on jurisdiction, ICTR-96-15-T, 1997, para. 8.

[1502] United Nations Department of Public Information, December 2002. The International Criminal Court.
662

[1503] General Assembly resolution 260 (III) B and A/CN.4/15 and A/CN.4/20 (1950)
[1504] UNGAOR A/2645
[1505] Report of the ILC on the Work of its 46th Session, A/49/10, pp. 43 ff
[1506] General Assembly resolution 50/46. See also resolutions 51/207 and 52/160
[1507] Article 11
[1508] Article 17
[1509] www.icc-cpi.int/library/cases/ICC 20051410-056-1 English.pdf
[1510] ICC-OTP-20040419-50-En
[1511] www.icccpi.int/library/press/pressreleases/ICC-OTP-BN-20070522-220 A EN.pdf
[1512] As mentioned under Article 17. Thomas Lubanga Dyilo case, ICC-01/04-01/06
[1513] B. Ferencz, An International Criminal Code and Court: Where They Stand and Where Theyre Going, 30
Columbia Journal of Transnational Law, 1992, p. 375.

[1514] UNSC Resolutions 764 (1992), 771 (1992) and 820 (1993)
[1515] S/25274
[1516] S/25704 (1993)
[1517] IT-94-1-AR72, 2 October 1995, p. 70; 105 ILR, p. 419
[1518] IT-94-1-AR72, 2 October 1995, p.70, paragraphs 30ff; 105 ILR p.419
[1519] Article 7
[1520] ICTR T. Ch. 4 September 1998
[1521] The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
Rwanda (ICTR), 2 September 1998, p. 166 .733.

[1522] Quoted in citation for honorary doctorate, Rhodes University, April 2005
[1523] ICTR Annual Report 2007, A/62/284 S/007/502
[1524] Security Council resolution 1329 (2000)
[1525] United Nations Security Council Resolution 1824 S-RES-1824(2008)
[1526] A/RES/57/228B, 22 M ay, 2003, http://unakrt-online.org/Docs/GA%20Documents/A-Res-57-228B.pdf
[1527] UNSC Res 1272 (1999); 1264 (1999) and S/1999/24
[1528] See Regulations 2000/11, 2000/14, 2000/15
[1529] Sections 14 and 22
[1530] Sections 2 and 3, UNTAET Regulation No. 1999/1
[1531] Case No. 16/201: www.jsmp.minihub.org/Judgements/courtofappeal/Ct_of_App-dos_Santos_English22703.pdf
[1532] Digest of cases before the Special Panels, produced in 2007,
nd

www.jsmp.minihub.org/Reports/2007/SPSC/SERIOUS%20CRIM ES%20DIGEST%20(M egan)%20250407.pdf

[1533] Paragraphs 10 and 11 of the resolution

[1534] UNM IK/REG/1999/24 and UNM IK/REG/2000/59
[1535] Article 1 of the Agreement contained in S/2002/246, Appendix II, and articles 1 and 6 of the Statute of the Special
Court, contained in S/2002/246, Appendix III

[1536] A/59/816-S/2005/350
[1537] Order No.48
[1538] N. Bhuta, Fatal Errors: The Trial and Appeal Judgments in the Dujail Case, 6 Journal of International Criminal
Justice, 2008, p. 39

663

[1539] Began on M arch 9, 2004

[1540] www.un.org/icty/pressreal/2003/p723-e.htm.
[1541] As per Article 5, annex 10, of the Dayton Peace Accord
[1542] Prosecutor v. Radovan Stankovic, ICTY, CaseNo. IT-96-23/2-AR11 bis.1
[1543] See Preamble to the Statute of the Special Tribunal for Lebanon
[1544] "Breakthrough in Tribunal Investigation: New Evidence Points to Hezbollah in Hariri M urder - SPIEGEL
ONLINE - News - International". Spiegel.de. http://www.spiegel.de/international/world/0,1518,626412,00.html.

[1545] Clive Archer, International Organizations, Routledge, 2007; M argaret P. Kams, Karen A. M ingst, International
Organizations: The Politics and Processes of Global Governance, Lynne Rienner Publishers, 2009;

[1546] ILM (1965) 1108; Sumukan v. Commonwealth Secretariat (CA) [2007] EWCA Civ 1148
[1547] Shaw, pp.244
[1548] Article II (3) of the FAO Constitution
[1549] Article XXIX of the CCAM LR Convention, 402 UNTS 71 (No.22301); ILM (1980) 837; UKTS (1982) 48;
TIAS 10240; B&B Docs 628

[1550] Section VI, Annex I to the Joint Declaration on the Question of Hong Kong, 1399 UNTS 33 (No.23391); ILM
(1984) 1366; UKTS (1985) 26

[1551] K.Ginther, International Organizations, Responsibility, EPIL II (1995), 133640.

[1552] K.Zemanek, International Organizations, Treaty-M aking Power, EPIL II (1995), 13436.
[1553] ICJ Reports 1949, 174.
[1554] See E.Klein, Reparations for Injuries Suffered in Service of UN (Advisory Opinion), EPIL 2 (1981), 2424
[1555] M .Zuleeg, International Organizations, Implied Powers, EPIL II (1995), 131214
[1556] L. Gross, The Peace of Westphalia, 16481948, 42 AJIL, 1948, p. 20
[1557] El Erian, Legal Organization, p. 58. See also A. Zamoyski, Rites of Peace, London, 2007
[1558] Bowetts International Institutions, chapter 1.
[1559] Bowetts International Institutions, p. 3.
[1560] Bowetts International Institutions, pp. 4-65.
[1561] Archer, Clive (2001). International Organizations. Routledge, p.14
[1562] "Bernheim Petition" (PDF). Shoah Resource Center, The International School for Holocaust Studies. M ay 1933.
http://www1.yadvashem.org.il/odot_pdf/M icrosoft%20Word%20-%206006.pdf. "Petition presented to the League of
Nations in M ay 1933 in an effort to protest Nazi anti-Jewish legislation."

[1563] Northedge, FS (1986). The League of Nations: Its Life and Times, 19201946. New York: Holmes & M eier, p.253
[1564] David, Wilton. "United Nations". Etymologies & Word Origins: Letter U. WordOrigins.org.
http://www.wordorigins.org/index.php/site/comments/united_nations/.

[1565] Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security
(UNC Press, 2001)

[1566] ICJ Reports 1949 p. 178

[1567] "Research Guide: General Assembly". United Nations. http://www.un.org/Depts/dhl/resguide/gasess.htm#gaagen.
[1568] Security Council Presidency in 2011 United Nations Security Council. Retrieved 2 February 2011.
[1569] UN Security Council: Presidential Statements 2008. Retrieved 15 January 2010 and Notes by the president of
the Security Council. Retrieved 15 January 2010.

[1570] M agliveras, Konstantinos D. Exclusion from

Participation in International Organisations, M artinus Nijhoff

Publishers, 1 Jan 1999, p. 113.

[1571] Article 13 of the Rome Statute

664

[1572]

^
"The
Court".
International
Court
p1=1&PHPSESSID=26e84ff7b1a8f1f3edf82cf94f3a7d68

of

Justice.

http://www.icj-cij.org/court/index.php?

[1573] Article 94, Statute of the International Court of Justice

[1574] Articles 4-12, Statute of the International Court of Justice
[1575] Articles 16-18
[1576] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA), [1986] ICJ
Reports 14, 15860 (M erits) per Judge Lachs.

[1577] See for Example: American treaty on pacific settlement, Bogot, 30 April 1948; Convention on the prevention
and punishment of the crime of genocide, Paris, 9 December 1948; Revised act for the pacific settlement of international
disputes, Lake Success, 28 April 1949; Convention relating to the status of refugees, Geneva, 28 July 1951; Treaty of peace
with Japan, San Francisco, 8 September 1951; Treaty of friendship (India/Philippines), M anila, 11 July 1952; Universal
copyright convention, Geneva, 6 September 1952; European convention for the peaceful settlement of disputes, Strasbourg,
29 April 1957; Single convention on narcotic drugs, New York, 30 M arch 1961; Optional protocol to the Vienna convention
on diplomatic relations, concerning the compulsory settlement of disputes, Vienna, 18 April 1961; International convention
on the elimination of all forms of racial discrimination, New York, 7 M arch 1966; Convention on the law of treaties, Vienna,
23 M ay 1969; Convention on the suppression of the unlawful seizure of aircraft, The Hague, 16 December 1970; Treaty of
commerce (Benelux/USSR), Brussels, 14 July 1971; Convention for the suppression of unlawful acts against the safety of
civil aviation, M ontreal, 23 September 1971; International convention against the taking of hostages, New York, 17 December
1979; General peace treaty (Honduras/El Salvador), Lima, 30 October 1980; United Nations Convention against torture and
other cruel, inhuman or degrading treatment or punishment, New York, 1985; Convention on treaties concluded between
States and international organizations or between international organizations, Vienna, 21 M arch 1986; United Nations
convention against illicit traffic in narcotic drugs and psychotropic substances, Vienna, 20 December 1988; United Nations
framework convention on climate change, New York, 9 M ay 1992; Convention on biological diversity, Rio de Janeiro, 5 June
1992; Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and their
destruction, Paris, 13 January 1993

[1578] Alexandrov S Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International
Court of Justice (Leiden: M artinus Nijhoff, 1995).

[1579]

Declarations

Recognizing

as

Compulsory

the

Jurisdiction

of

the

Court.

http://www.icj-

cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3 Last visited 21 February 2011.

[1580] Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania)". International Court
Justice.
30
September
194715
p1=3&p2=3&k=cd&case=1&code=cc&p3=90.

December

1949.

of

http://www.icj-cij.org/docket/index.php?

[1581] The UN General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier, Pieter H.F.
Bekker, ASIL (American Society of International Law) Insights, December 2003.

[1582] "Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 - General List No. 95
(1995-1998)

[1583] The United Nations System, http://www.un.org/aboutun/chart_en.pdf

[1584] UN structure and organization, Specialized Agencies http://www.un.org/en/aboutun/structure/index.shtml
[1585] United Nations. "Cooperation with regional organizations", in Annual Report of the Secretary-General on the
work of the Organization 1995, ch. 4

[1586] Amended in 1967 by the Buenos Aires Protocol, in 1985 by the Cartagena de Indias Protocol and by the 1992
Washington Protocol and the 1993 M anagua Protocol

[1587] "Pact of the League of Arab States, 22 M arch 1945". The Avalon Project. Yale Law School. 1998
[1588] T. C. Hartley, The Foundations of European Community Law, 6th edn, Oxford, 2007
[1589] European Commission. "The EU Single M arket: Fewer barriers, more opportunities". Europa web portal.
http://ec.europa.eu/internal_market/index_en.htm.

[1590]

"Common
commercial
policy".
http://europa.eu/scadplus/glossary/commercial_policy_en.htm

[1591]

Agriculture

and

Fisheries

Europa

Council".

665

The

Glossary.
Council

Europa
of

the

web
European

portal.
Union.

http://www.consilium.eu.int/cms3_fo/showPage.asp?id=414&lang=en&mode=g.

[1592]

"Overview of the European

http://europa.eu/pol/reg/overview_en.htm.

Union

activities:

Regional

Policy".

Europa

[1593] The NATO Handbook, Brussels, 2002 and at www.nato.int/docu/ handbook/2001/index.htm

[1594] Ramjeet, Oscar (2009-04-16). "CARICOM countries will speak with one voice in meetings

web

portal.

with US and

Canadian leaders". Caribbean Net News. http://www.caribbeannetnews.com/news-15757--63-63--.html

[1595] George Lenczowski, American Presidents and the M iddle East, 1990, p.88
[1596] www.asean.org, Overview, Asean.org, ASEAN Secretariat official website.
[1597] "Singapore Declaration of Commonwealth Principles 1971". Commonwealth

Secretariat. 22 January 1971.

http://www.thecommonwealth.org/Internal/20723/32987/singapore_declaration_of_commonwealth_principles/.

[1598] A. Lawrence Chickering, et. all. Strategic Foreign Assistance: Civil Society in International Security. Stanford:
Hoover Institution Press, 2006; M argaret E. Keck and Kathryn Sikkink Activists beyond Borders: Advocacy Networks in
International Politics London: Cornell University Press, 1998; M artin J. Rochester, Between Two Epochs: Whats Ahead for
America, the World, and Global Politics in the Twenty-First Century Upper Saddle River, NJ: Prentice Hall, 2002; Daniel
Sobelman, Four Years After the Withdrawal from Lebanon: Refining the Rules of the Game, Strategic Assessment, Vol. 7 No.2,
August 2004; Craig Warkentin, Reshaping World Politics: NGOs, the Internet, and Global Civil Society. New York: Rowman
and Littlefield Publishers, 2001.

[1599] European Commission - Development - The Cotonou Agreement

[1600] J. M artin Rochester, The Paradigm Debate in International Relations and Its Implications for Foreign Policy
M aking: Toward a Redefinition of the "National Interest", The Western Political Quarterly, Vol. 31, No. 1 (M ar., 1978), pp.
48-58

[1601] Troy

S. Thomas, Stephen D. Kiser and William D. Casebeer, Warlord Rising: Confronting Violent Non-State
Actors Rowman and Littlefield (2005)

[1602] Operational Directive 14.70 - see NGO Research Guide, Duke University Libraries.
[1603] The Rise and Fall of Transnational Civil Society: The Evolution of International

Non-Governmental

Organizations since 1839. By T. R. Davies City University London Working Paper. Steve Charnovitz, "Two Centuries of
Participation: NGOs and International Governance, M ichigan Journal of International Law, Winter 1997.

[1604] Subcontracting Peace - The Challenges of NGO Peacebuilding. Edited by: Richmond, Oliver P., and Carey, Henry
F. Published by Ashgate, 2005. Page 21.

[1605] Davies, Thomas Richard (2007). The Possibilities of Transnational Activism: the Campaign for Disarmament
between the Two World Wars.

[1606]

See Chapter 27: Strengthening the Role of Non-governmental Organizations: Partners for Sustainable
Development, Earth Summit, 1992, Agenda 21; 1996/31. Consultative relationship between the United Nations and nongovernmental organizations

[1607] "About Amnesty International". Amnesty International. http://www.amnesty.org/en/who-we-are/about-amnestyinternational.

[1608] Ibid
[1609] James Ronand, Howard Ramos, Kathleen Rodgers (2005), "Transnational Information Politics: NGO Human
Rights Reporting, 19862000", International Studies Quarterly (2005) 49, 557587

[1610] See Annual Amnesty International Reports

[1611] http://www.hrw.org/en/node/75138
[1612] Tripartite Declaration of Principles Concerning M ultinational Enterprises and Social Policy, 1977, OB Vol. LXI,
1978, Series A, No. 1; Document No.:28197701; adopted by the Governing Body of the International Labour Office at its
204th Session (Geneva, November 1977)

[1613] The Register of Letters &c. of the Governor and Company of M erchants of London trading into the East Indies,
16001619. On page 3, a letter written by Elizabeth I on January 23, 1601

[1614] See generally Yossi Shain and Tamara Cofman Wittes. Peace as a Three-Level Game: The Role of Diasporas in
Conflict Resolution in Ambrosio, Thomas. 2002. "Ethnic identity groups and U.S. foreign policy." Praeger Publishers.

666

[1615] Ibid.
[1616] Casebeer, M aj William, (USAF, USAF Academy), and Thomas, M aj Troy Thomas, USAF (1st Fighter Wing IN.)
(December 2002). "Deterring Violent Non-State Actors in the New M illenium". Strategic Insights I (10); Bartolomei, Jason ;
Casebeer, William ; Thomas, Troy (November 2004). "M odeling Violent Non-State Actors: A Summary of Concepts and
M ethods". IITA Research Publication, Information Series (Colorado: Institute for Information Technology Applications,
United States Air Force Academy); Thomas, M aj. Troy S., USAF and Casebeer, M aj. William D., USAF (M arch 2004).
"Violent Non-State Actors: Countering Dynamic Systems". Strategic Insights III; Richard H. Shultz, Douglas Farah, Itamara
V. Lochard (September 2004). "Armed Groups: A Tier-One Security Priority". INSS Occasional Paper (USAF Institute for
National Security Studies, USAF Academy)

[1617] The hijack of TWA Flight 847 on 14 June 1985 by Lebanese Shiites is one example of this phenomenon: see e.g.
The Economist, 22 June 1985, p. 34

[1618] See generally K.J. Holsti, Taming the Sovereigns: Institutional Change in International Politics (Cambridge 2004)
[1619] Oxford English Dictionary second edition 1989 "insurgent B. n. One who rises in revolt against constituted
authority; a rebel who is not recognized as a belligerent."

[1620] http://www.globalsecurity.org/military/library/policy/army/fm/100-20/10020ch2.htm
[1621] militia". The American Heritage Dictionary of the English Language, Fourth Edition.

Houghton M ifflin

Company. 2000.

[1622] Richard H. Shultz, Douglas Farah, Itamara V. Lochard, Armed Groups: A Tier One Security Priority, INSS
Occasional Paper 57, September 2004, USAF Institute for National Security Studies, USAF Academy, Colorado, at p.39

[1623] Ibid.
[1624] http://www.cpj.org/2008/06/militia-leader-accused-of-torturing-reporters-surr.php
[1625] The search for a legal definition of terrorism resembles the quest for the Holy Grail as periodically eager souls set
out, full of purpose, energy and self-confidence, to succeed where so many others before have tried and failed. G. Levitt, Is
Terrorism Worth Defining? Ohio Northern University Law Review 1986 (13), p. 97.

[1626]

Kim Campbell (September 27, 2001). When is 'terrorist' a subjective term? Christian Science Monitor.

http://www.csmonitor.com/2001/0927/p16s2-wogi.html.

[1627] Ibid.
[1628] Robert

M ackey (November 20, 2009). "Can Soldiers Be Victims of Terrorism?". The New York Times.
http://thelede.blogs.nytimes.com/2009/11/20/define-terrorism/. "Terrorism is the deliberate killing of innocent people, at
random, in order to spread fear through a whole population and force the hand of its political leaders."

[1629] Jeremy Lott (December 5, 2001). "Suicide Blunderers: Terrorists kill selves, blame Jews.". Reason M agazine.
http://reason.com/archives/2001/12/05/suicide-blunderers. "The World Trade Center and Pentagon bombings were an
unthinkable masterstroke, producing a media spectacle that rocked the world."

[1630]"UN

Reform". United Nations. 2005-03-21. Archived from the original on 2007-04-27.

http://web.archive.org/web/20070427012107/http://www.un.org/unifeed/script.asp?scriptId=73. "The second part of the
report, entitled "Freedom from Fear backs the definition of terrorism - an issue so divisive agreement on it has long eluded the
world community - as any action "intended to cause death or serious bodily harm to civilians or non-combatants with the
purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing
any act.""; Khan, Ali (1987). "A Theory of International Terrorism" (PDF). Social Science Research Network.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935347. Retrieved 2008-07-11.

[1631]

"warlord - definition of warlord by the Free Online Dictionary, Thesaurus and Encyclopedia".
Thefreedictionary.com. http://www.thefreedictionary.com/warlord

[1632]

Nick Grono & Candace Rondeaux, (2010-01-17). "Dealing with brutal Afghan warlords is a mistake"
http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2010/01/17/dealing_with_brutal_afghan_warlords_is_a_mistake/
M alalai Joya "The big lie of Afghanistan - M y country hasn't been liberated: it's still under the warlords' control, and Nato
occupation only reinforces their power"

[1633]

Jim Lobe, Iraq: Toward National Reconciliation, or a Warlord State? http://www.antiwar.com/lobe/?

articleid=11941

[1634]

Chechen

Warlord

Claims

responsibility

667

for

Russia

Airport

Bombing

http://www2.dailyprogress.com/news/2011/feb/08/chechen-warlord-claims-responsibility-russia-airpo-ar-827833/

[1635]

George Russell and David De Voss, Southeast

http://www.time.com/time/magazine/article/0,9171,951868,00.html

Asia:

Battle

of

[1636] http://www.mndaily.com/2008/05/08/colombia-extradites-warlord-us?page=2
[1637] See Lubanga Case: www.iccnow.org/?mod=drctimelinelubanga
[1638] http://www.islammemo.cc/akhbar/sudan_news/2010/10/16/108989.html?lang=en-us
[1639] http://www.pakistantoday.com.pk/2011/04/bahadar-wooing-warlords-to-call-off-truce-deal/
[1640]
Ana
Pejcinova,
Afghanistan:
Creation
of
a
Warlord

the

Warlords

Democracy

http://www.anapejcinova.org/Theses/Afghanistan/14conclusion.htm

[1641] T. M . Franck and B. Lockwood, Preliminary Thoughts Towards an International Convention on Terrorism, 68
AJIL, 1974, p. 69

[1642] theConventions on OffencesCommitted on Board Aircraft, 1963; for the Suppression of Unlawful Seizure of
Aircraft, 1970; for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; on the Prevention and
Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, 1973; against the Taking of
Hostages, 1979; on the Physical Protection of NuclearM aterial, 1980; for the Suppression of Unlawful Acts of Violence at
Airports, Protocol 1988; for the Suppression of Unlawful Acts against the Safety of M aritime Navigation, 1988; for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf, Protocol 1988; on the M arking
of Plastic Explosives for the Purpose of Identification, 1991; for the Suppression of Terrorist Bombing, 1997; for the
Suppression of the Financing of Terrorism, 1999 and for the Suppression of Acts of Nuclear Terrorism, 2005.

[1643] General Assembly resolution 3034 (XXVII).

[1644] See also UNSC Res 1373 (2001)
[1645] European Convention on the Suppression of Terrorism, 1977; The Council of Europe Convention on the
Prevention of Terrorism, 2005; the European Union Framework Decision on Terrorism, 2002, the South Asian Association
for Regional Co-operation Regional Convention on Suppression of Terrorism, 1987 and Additional Protocol of 2005; the
Arab Convention for the Suppression of Terrorism, 1998; the Convention of the Organisation of the Islamic Conference on
Combating International Terrorism, 1999; the Commonwealth of Independent States Treaty on Co-operation in Combating
Terrorism, 1999; the African Union Convention on the Prevention and Combating of Terrorism, 1999 and Protocol of 2005;
the ASEAN Convention on Counter Terrorism, 2007, and the Organization of American States Inter-American Convention
against Terrorism, 2002; The M inisterial Declaration and Plan of Action on Combating Terrorism, 2001.

[1646] H. J. Steiner, P. Alston and R. Goodman, International Human Rights in Context, 3rd ed., Oxford, 2008, chapter
5; Report of the Secretary-General on theWork of the Organisation, A/57/1, 2002, p. 1

[1647] Lord M cNair, The Law of Treaties, 2nd ed., 1961; S.Rosenne, Vienna Convention on the Law of Treaties, EPIL 7
(1984), 52533;

[1648] Nuclear Tests Case (Australia v. France), ICJ Rep. 1974, 253, 2678
[1649] Text in ILM 8 (1969), 679, AJIL 63 (1969), 875
[1650] the Beagle Channel case, HM SO, 1977, p. 7; 52 ILR, p. 93; the La Bretagne case, 82 ILR, pp. 590, 612; the
Golder case, European Court of Human Rights, Series A, No. 18, p. 14; 57 ILR, pp. 201, 21314 and the Lithgow case,
European Court of Human Rights, Series A, No. 102, para. 114; 75 ILR, pp. 438, 4823.

[1651] The Namibia case, ICJ Reports, 1971, pp. 16, 47; 49 ILR, pp. 2, 37.
[1652] The Fisheries Jurisdiction cases (jurisdictional phase), ICJ Reports, 1973, pp. 3, 21; 55 ILR, pp. 183, 201
[1653] the Namibia case, ICJ Reports, 1971, pp. 16, 47; 49 ILR, pp. 2, 37 and the Fisheries Jurisdiction case, ICJ
Reports, 1973, pp. 3, 18; 55 ILR, pp. 183, 198. See also Rosenne, Developments, p. 121

[1654] Articles 26, 31, 46 and 69 of the 1969 Convention. See

the Nuclear Tests cases, ICJ Reports, 1974, pp. 253, 268; 57 ILR, pp. 398, 413; the Nicaragua case, ICJ Reports, 1986, pp.
392, 418; 76 ILR, pp. 104, 129 and the Legality of the Threat or Use of Nuclear Weapons case, ICJ Reports, 1996, para.
102; 110 ILR, pp. 163, 214

[1655] The Newfoundland/Nova Scotia arbitration, 2001, para 3.15. See also the Aegean Sea Continental Shelf case, ICJ
Reports, 1978, pp. 3, 39; 60 ILR, p. 511.

668

[1656] Third US Restatement of Foreign Relations Law, Washington, 1987, vol. I, p. 149
[1657] South-West Africa cases, ICJ Reports, 1962, pp. 319, 330; 37 ILR, pp. 3, 12
[1658] Anglo-Iranian Oil Co. case, ICJ Reports, 1952, pp. 93, 112; 19 ILR, pp. 507, 517
[1659] The Fisheries Jurisdiction cases, ICJ Reports, 1973, pp. 3, 16; 55 ILR, pp. 183, 196.
[1660] The Nuclear Tests case, ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398, 412.
[1661] FCO, Treaties and M OUs: Guidance on Practice and Procedures,

2nd

ed.,

2004,

www.fco.gov.uk/resources/en/pdf/pdf8/fco_pdf_treatymous

[1662] A. Aust, The Theory and Practice of Informal International Instruments, 35 ICLQ, 1986, p. 787
[1663] ICJ Reports, 1994, p. 112; 102 ILR, p. 1.
[1664] ILM 25 (1986), 543
[1665] Article II, Section 2 of the Constitution of the United States of America
[1666] J. H. Rayner Limited v. Department of Trade and Industry (1990) 2 AC 418
[1667] Section 61 of the Constitution of Australia
[1668] Article 52 of the French Constitution
[1669] Article 73 of the Indian Constitution
[1670] Sinclair, Vienna Convention, pp. 29 ff.; Aust, M odern Treaty Law, chapter 5
[1671] Yearbook of the ILC, 1966, vol. II, p. 193.
[1672] Genocide Case (Bosnia v. Serbia), ICJ Reports, 1996, pp. 595, 622; 115 ILR, p. 1; Cameroon v. Nigeria, ICJ
Reports, 2002, pp. 303, 430

[1673] Article 8 of the Vienna Convention on the Law of Treaties, 1969

[1674] Articles 2(1)(b) and 16 of the Vienna Convention on the Law of Treaties, 1969
[1675] C.Redgwell, Universality or Integrity? Some Reflections on Reservations to General M ultilateral Treaties, BYIL
64 (1993), 24582.

[1676] ICJ Rep. 1951, 15, at 29

[1677] J. Klabbers, Accepting the Unacceptable? A new Nordic approach to Reservations to M ultilateral Treaties, 69
Nordic Journal of International law 2000, pp 179-193

[1678] K.Zemanek, Treaties, Secret, EPIL 7 (1984), 5056.

[1679] Article 24, Vienna Convention on the Law of Treaties.
[1680] Article 25(2) Vienna Convention on the Law of Treaties.
[1681] Article 18(a) Vienna Convention on the Law of Treaties.
[1682] H.Ballreich, Treaties, Effect on Third States, EPIL 7 (1984), 47680
[1683] Article 42(1), Vienna Convention; See also M .Schrder, Treaties, Validity, EPIL 7 (1984), 5114
[1684] Fisheries Jurisdiction Case (UK v. Ireland) (Jurisdiction), ICJ Rep. 1973, 3, at 14, obiter
[1685] L Caflisch, Unequal Treaties, GYIL 35 (1992), 52
[1686] M .B.Akehurst, Treaties, Termination, EPIL 7 (1984), 50710
[1687] AJIL 67 (1967) 388
[1688] ICJ Rep. 1984, 392, at 420
[1689] See Akehurst, Chapters 18, 284 and 19, 319
[1690] Fisheries Jurisdiction Case, UK v. Iceland (Jurisdiction), ICJ Rep. 1973, 3, 18, para. 36
[1691] J.Delbrck, War, Effect on Treaties, EPIL 4 (1982), 31015
[1692] See Treaty of Versailles with Germany, 1919; Treaty of St. Germain with Austria, 1919; Treaty of Trianon with
Hungary; Treaty of Neuilly with Bulgaria; Treaty of Lausanne with Turkey, 1923

669

[1693] Y. Dinstein, War, Aggression and Self-Defence, 4th edn, Cambridge, 2005; C. Gray, International Law and the Use
of Force, 2nd edn, Oxford, 2004; D. W. Bowett, Self-Defence in International Law,M anchester, 1958; I. Brownlie,
International Law and the Use of Force by States, Oxford, 1963

[1694] J.L.Brierly, Law of Nations 1 (Waldock, 6 ed.) 1963

[1695] Brownlie, Use of Force, pp. 7 ff.
[1696] Vitoria, De Indis et de Jure Belli Relectiones, ss. 14, 203, 29 and 60, cited in Bailey, Prohibitions, p. 11.
[1697] Ibid.
[1698] Ibid.
[1699] Brownlie, Use of Force, pp. 268
[1700] Brownlie,Use of Force, pp. 268
[1701] Ibid.
[1702] Articles 1016 of the Covenant
[1703] A. K. Skubiszewski, The Use of Force by States in Srensen, M anual of Public International Law, pp. 739,
th

7424

[1704] Article I.
[1705] Article 2 of the Pact.
[1706] Wright, The M eaning of the Pact of Paris, American Journal of International Law, 27: 39, 42-43
[1707] See for example, UNSC Res 757 (1992)
[1708] See Simma, Charter, p.118; Douglas Waller, Onward Cyber Soldiers; The U.S. M ay Soon Wage War by M ouse,
Keyboard and Computer Virus. But It Is Vulnerable to the Same Attacks, TIM E, Aug. 21, 1995, at 38; Neil M unro, The
Pentagons New Nightmare: An Electronic Pearl Harbor, WASH. POST, July 16, 1995, at C3; Paul Szaz, The Law of
Economic Sanctions, in 71 US Naval College of International Law Studies: The Law of Armed Conflict Into the Next
M illennium 455, 455-56 (M ichael N. Schmitt & Leslie C. Green eds., 1998)

[1709] Ruth Russell, A History of the United Nations Charter 456-57, 673-75, 1067 (1958); see also Proposals for the
Establishment of a General International Organization 1944

[1710] Bruno Simma, The Charter of the United Nations: A Commentary (2nd edn Oxford University Press, New York
2002) 462

[1711] Ian Brownlie, International Law and the Use of Force by States 365-66 (1963).
[1712] Paul Szaz, The Law of Economic Sanctions, in 71 US Naval College of International Law Studies: The Law of
Armed Conflict Into the Next M illennium 455, 455-56 (M ichael N. Schmitt & Leslie C. Green eds., 1998)

[1713] Paust and Blaustein, Arab Oil Weapon

[1714] UNSC Res 662 (9 August 1990) UN Doc S/RES/662
[1715] Bruno Simma, The Charter of the United Nations: A Commentary (2nd edn Oxford University Press, New York
2002) 118

[1716]

M . Roscini, Threats of Armed Force and Contemporary International Law, 54 NILR, 2007, p. 229; R.
Sadurska, Threats of Force, 82 AJIL, 1988, p. 239

[1717] ILM 35 (1996) 830 para 96

[1718] ICJ Reports, 1996, pp. 226, 2467; 110 ILR, p. 163.
[1719] See Brownlie, Use of Force, p. 268
[1720] General Assembly resolution 2131 (XX)
[1721] General Assembly resolution 2625 (XXV).
[1722] Nicaragua case, ICJ Reports, 1986, pp. 14, 10910; 76 ILR, pp. 349, 4434
[1723] 29 BFSP, p. 1137 and 30 BFSP, p. 195.
[1724] DUSPIL, 1975, p. 17
670

[1725] Brownlie, Use of Force, pp. 11213 and 264 ff.

[1726] ICJ Reports, 1986, pp. 14, 94; 76 ILR, pp. 349, 428
[1727] The Oil Platforms (Iran v. US) case, ICJ Reports, 2003, pp. 161, 189 and 190; 130 ILR, pp. 323, 34850
[1728] ICJ Reports, 1986, pp. 14, 94
[1729] ICJ Reports, 1986, pp. 14, 103
[1730] Nicaragua Case, ICJ Reports, 1986, pp.14, 76 ILR pp.349; Oil Platforms Case (Iran v. US) case, ICJ Reports,
2003, pp. 161, 189 and 190; 130 ILR, pp. 323, 34850

[1731] Contemporary Practice of the United States, 93 AJIL, 1999, p. 161

[1732] ICJ Rep. 1949, 4, 301.
[1733] Brownlie, Use of Force, p. 279, footnote 2
[1734] Nicaragua Case ICJ Reports, 1986, pp. 14, 94; 76 ILR, pp. 349, 428 and 437; See also Legality of the Threat or
Use of Nuclear Weapons ICJ Reports 1996 pp.226, 245; 110 ILR p.163

[1735] ICJ Reports, 2003, pp. 161, 198

[1736] Oil Platforms Case ICJ Reports, 2003, pp. 161, 198
[1737] Congo v. Uganda ICJ Reports, 2005, pp. 168, 223
[1738] H. Lauterpacht, The Function of Law in the International Community, London, 1933, p. 179
[1739] Y. Dinstein, War, pp.204ff.
[1740] ICJ Reports, 1986, pp. 14; 76 ILR, pp. 349
[1741] ICJ Reports, 2004, pp. 136, 194
[1742] ICJ Reports, 2005, p. 168
[1743] Dinstein, War, pp. 201 ff
[1744] M ichael Reisman, Assessing Claims to Revise the Laws of War (2003) 97 AJIL 82, 84; M ichael Reisman,
M ahnoush Arsanjani, Siegfried Wiessner and Gayl Westerman, International Law in Contemporary Perspective (Foundation
Press, New York 2004) 1050

[1745] Tai-Heng Cheng and Eduardas Valaitis, Shaping an Obama Doctrine of Preemptive Force [2009]
82 Temp L Rev <http://www.temple.edu/law/tlawrev/content/issues/82.3/82.3_Cheng_Essay.pdf>

[1746] National Security Council (September 20, 2002). The White House.
[1747] M ichael Reisman, Assessing Claims to Revise the Laws of War (2003) 97 AJIL 82, 84; M ichael Reisman,
M ahnoush Arsanjani, Siegfried Wiessner and Gayl Westerman, International Law in Contemporary Perspective (Foundation
Press, New York 2004) 1050

[1748] UNSC Res. 487, 19 June 1981

[1749] BPIL 1963, 206.
[1750] B.A.Ramundo, Peaceful Coexistence, 1967, 12933
[1751] S.Less, Aqaba, Gulf of, EPIL I (1992), 197202.
[1752] ICJ Reports 1986 pp.14, 103-105; 76 ILR pp.349, 437
[1753] C. F. Amerasinghe, The Ceylon Oil Expropriations, 58 AJIL, 1964, p. 445.
[1754] 2 RIAA p.1011 (1928); 4 AD p.526
[1755] Dinstein, War, p. 222
[1756] Legality of the Threat or Use of Nuclear Weapons ICJ Reports 1996, pp. 226, 246; 110 ILR p.163
[1757] Brownlie, Use of Force, pp. 2234
[1758] Q. Wright, The Cuban Quarantine, 57 AJIL, 1963, p. 546
[1759] E.Zoller, Peacetime Unilateral Remedies. An Analysis of Countermeasures, 1984
671

[1760] See J.Charney, Third State Remedies in International Law, M ich. JIL 10 (1989), 57
[1761] ICJ Reports 1986 pp.14, 108; 76 ILR p. 442
[1762] N. J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society, Oxford, 2002; R. Goodman,
Humanitarian Intervention and Pretexts for War, 100 AJIL, 2006, p. 107

[1763] I. Brownlie, Humanitarian Intervention, in M oore, Law and Civil War, p. 217
[1764] Akehurst, Humanitarian Intervention in Bull, Intervention in World Politics, p. 95
[1765] See UKM IL, 70 BYIL, 1999, p. 590
[1766] UKM IL, 70 BYIL, 1999, p. 586
[1767] UKM IL, 72 BYIL, 2001 p.696
[1768] J. Crawford, Democracy and International Law, 44 BYIL, 1993, p. 113; B. R. Roth, Governmental Illegitimacy
in International Law, Oxford, 1999; O. Schachter, The Legality of Pro-Democratic Invasion, 78 AJIL, 1984, p. 645.

[1769] International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa, 2001
[1770] M .Akehurst, Civil War, EPIL I (1992), 597603
[1771] C.Haverland, Secession, EPIL 10 (1987), 3849
[1772] K.J.Partsch, Israel and the Arab States, EPIL II (1995), 14608
[1773] Res. 2131 (XX), 21 December 1965, UNYB 1965, 94
[1774] ILM 19 (1980), 534, para. 7
[1775] ICJ Rep. 1986, 14, 1012 and 1068
[1776] KCA 1980, 30364, 30385
[1777] E.H.Riedel, Recognition of Belligerency, EPIL 4 (1982), 16771
[1778] P.M alanczuk, American Civil War, EPIL I (1992), 12931
[1779] R.Jennings/A.Watts (eds), Oppenheims International Law, I: Peace, 9th edn 1992, 4359.
[1780] M .Weller, Terminating Armed Intervention in Civil War: The Afghanistan Peace Accords of 1988, 1991 and 1993,
FYIL 5 (1994), 505689

[1781] D.Threr, Self-Determination, EPIL 8 (1985), 47080; R.M cCorquodale, Self-Determination: A Human Rights
Approach, ibid., 85785; L.R.Beres, Self-Determination: The Ironies of Self-Determination under International Law, Arizona
JICL 11 (1994), 126; A. Cassese, Self- Determination of Peoples. A Legal Reappraisal, 1995

[1782] East Timor case (Portugal v. Australia), ICJ. Rep. 1995, 90

[1783] K.Ginther, Liberation M ovements, EPIL 3 (1982), 2459; H.J.Uibopuu, Wars of National Liberation, EPIL 4
(1982), 3436

[1784] UNGA Res 1514 (XV)

[1785] See generally Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge,
2004

[1786] T. M eron, Revival of Customary Humanitarian Law, 99 AJIL, 2005, p. 817

[1787] C. M oorehead, Dunants Dream, London, 1998
[1788] Symposium on the Hague Peace Conferences, 94 AJIL, 2000, p. 1
[1789] S. C. Neff, The Rights and Duties of Neutrals, M anchester, 2000
[1790] ICJ Reports, 1996, pp. 226, 256; 110 ILR, p. 163
[1791] J. Pictet, Commentary on the Geneva Conventions of 12 August 1949, Geneva, 1952, vol. I, p. 29; Tadic case,
IT-94-1, Decision on Jurisdiction, para. 70; 105 ILR, pp. 453, 488

[1792] Case No. IT-94-1-AR 72; 105 ILR, pp. 453, 486 ff
[1793] See UNSC Res 788 (1992), 972 (1995) and 1001 (1995) [Relating to the internal armed conflict in Liberia];
UNSC Res 794 (1992), 814 (1993) [Relating to the internal armed conflict in Somalia]; UNSC Res 993 (1993) [Relating to

672

the internal armed conflict in Georgia], UNSC Res 1193 (1998) [Relating to the internal armed conflict in Afghanistan];
UNSC Res 1973 (2011) [Relating to the internal armed conflict in Libya]

[1794] Case No. IT-94-1-AR; 105 ILR pp. 453, 494

[1795] Ibid
[1796] ICJ Reports, 1986, pp. 14, 645; 76 ILR, p. 349
[1797] Case No. IT-96-23 and IT-96-23/1, para. 57
[1798] Article 7 of the first three Conventions and Article 8 of the fourth Convention
[1799] Jean S. Pictet (1951), "The New Geneva Conventions for the Protection of War Victims", The American Journal
of International Law 45 (3): 462475

[1800] George B. Davis, (1907), "The Geneva Convention of 1906", The American Journal of International Law 1 (2):
400

[1801] Pictet, Jean (1958). Geneva Conventions of 12 August 1949: Commentary. International Committee of the Red
Cross. http://www.loc.gov/rr/frd/M ilitary_Law/Geneva_conventions-1949.html.

[1802] G. I. A. D. Draper, The Status of Combatants and the Question of Guerilla Warfare, 45 BYIL, 1971, pp. 173,
186

[1803] A. Cassese, International Law, 2nd edn, Oxford, 2005, pp. 40910
[1804] EritreaEthiopia Claims Commission in its Partial Award, Prisoners of War, Ethiopias Claim 4, 1 July 2003,
paras. 53 and 64

[1805] Rights contained within Articles 27 to 46

[1806] Construction of a Wall case, ICJ Reports, 2004, pp. 136, 167 and Democratic Republic of the Congo v. Uganda,
ICJ Reports, 2005, pp. 168, 229

[1807] ICJ Reports, 2005, pp. 168, 230

[1808] R v. Civil Aviation Authority [2006] EWHC2465 (Admin), at para. 15; 132 ILR, p. 713
[1809] Prefecture of Voiotia v. Germany (DistomoM assacre), Court of Cassation, Greece, 4 M ay 2000, 129 ILR,pp.
514, 519 and M araabe v. The Prime M inister of Israel, Israel Supreme Court, 15 September 2005, 129 ILR, pp. 241, 252

[1810] Articles 127 and 144 of the Third and Fourth Geneva Conventions, article 83 of Protocol I and article 19 of
Protocol II

[1811] Articles 20 and 51(6) of Protocol I.

[1812] C.Tomuschat, Article 2(3), in Simma CUNAC, 97106
[1813] Article 33(1) of the UN Charter
[1814] C.Tomuschat, Article 33, in Simma CUNAC, 505-514.
[1815] K.Oellers-Frahm/N.Whler (comps.), Dispute Settlement in Public International Law: Texts and M aterials, 1984.
[1816] The 95th Annual Report of the Administrative Council of the Permanent Court of Arbitration, 1995, Annex 1;
text of the 1899 Convention in UKTS 9 (1901) Cd. 798; 1907 Convention, UKTS 6 (1971) Cmnd. 4575. On the Hague
Peace Conferences see Chapter 2 above, 223.

[1817] Text in 71 UNTS 101, revised by the United Nations in 1949, UNGA Res. 268A (III) of 28 April 1949. See
F.v.d. Heydte, General Act for the Pacific Settlement of International Disputes (1928 and 1949), EPIL II (1995), 499 502;
Heydte, Geneva Protocol for the Pacific Settlement of International Disputes (1924), ibid., 52931.

[1818] 30 UNTS 55; T.B.de M aekelt, Bogot Pact (1948), EPIL I (1992), 415.
[1819] 320 UNTS 243. See K.Ginther, European Convention for the Peaceful

Settlement of Disputes, EPIL II

(1995),186.

[1820] ILM 3 (1964), 1116. See T.M aluwa, The Peaceful Settlement of Disputes Among African States, 19631983:
Some Conceptual Issues and Practical Trends, ICLQ 38 (1989), 299320.

[1821] ILM 32 (1993), 557. See also D. Bardonnet (ed.), The Peaceful Settlement of International Disputes in Europe:
673

Future Prospects, 1991; K. Oellers-Frahm, The M andatory Component in the CSCE Dispute Settlement System, in M .Janis
(ed.), International Courts for the Twenty-First Century, 1992, 195211.

[1822] UN Doc. A/47/558, 98. See J.Hilf, Der neue Konfliktregelungsmechanismus der OAU, ZaRV 54 (1994), 1023
47.

[1823] C.-A.Fleischhauer, Negotiation, EPIL 1 (1981), 1524.

[1824] North Sea Continental Shelf Cases, ICJ Rep. 1969, 3, at 47
[1825] Fisheries Jurisdiction (UK v. Iceland), [1973] ICJ Rep. p.3.
[1826] R.L.Bindschedler, Good Offices, EPIL II (1995), 6013; R.L. Bindschedler, Conciliation and M ediation, EPIL I
(1992), 7215

[1827] ILM 17 (1978), 632.

[1828] Algiers Accords in ILM 20 (1981), 223. See S.A.Riesenfeld, United States-Iran Agreement of January 19, 1981
(Hostages and Financial Arrangements), EPIL 8 (1985), 522

[1829] D. Lieb, Iran and Iraq at Algiers, 1975 in Touval and Zartman, International Mediation, p. 67
[1830] R.B.Lillich (ed.), Fact-Finding Before International Tribunals, 1992; K.J.Partsch, Fact-Finding and Inquiry,
EPIL II (1995), 3435.

[1831] Report of the UN Secretary-General on methods of fact-finding, UN Doc. A/6228, GAOR (XXI) of 22 April
1966, Annexes Vol. 2, Agenda item 87, 121

[1832] Dogger Bank Inquiry (1905), in J.B.Scott (ed.), The Hague Court Reports, 1916, 40313
[1833] Article 1 of the Regulation on the Procedure of International Conciliation, Ann. IDI 49II (1961), 38591.
[1834] H. V. M angoldt, Arbitration and Conciliation Treaties, EPIL I (1992), 232
[1835] Peter M alnczuk, Akehursts Modern Introduction to International Law, p.280
[1836] N.Whler, East African Community, EPIL II (1995), 13.
[1837] P.M .Eisemann, Repertory of International Arbitral Jurisprudence, 3 vols, 19891 990; A.H.Soons

(ed.),

International Arbitration. Past and Prospects, 1990

[1838] M .W.Janis, An Introduction to International Law, 2 ed. 1993, p.111

[1839] H.-J.Schlochauer, Permanent Court of Arbitration, EPIL 1 (1981), 15763
[1840] L.B.Sohn, The Role of Arbitration in Recent International and M ultilateral Treaties, Virginia JIL 23 (1982/3), 171
[1841] Article 37, ICJ Statute
[1842] G.C.Fitzmaurice, The Law and Practice of the International Court of Justice, 1986
[1843] Articles 92 and 93(1) UN Charter
[1844] State Practice shows that Switzerland opted for this in 1948, Liechtenstein in 1950 and San M arino in 1954.
[1845] Article 34 ICJ Statute
[1846] Corfu Channel case (Preliminary Objection), ICJ Rep. 1948, 1548, at 278
[1847] S.Rosenne, The Qatar/Bahrain CaseWhat is A Treaty? A Framework Agreement and the Seising of the Court,
nd

LJIL 8 (1995), 16182

[1848] (Portugal v. Australia), judgment of 30 June 1995, ICJ. Rep. 1995, 90, ILM 34 (1995), 1581
[1849] See generally R.Szafarz, The Compulsory Jurisdiction of the International Court of Justice, 1993
[1850] H. W. A. Thirlway, Reciprocity in the Jurisdiction of the International Court, NYIL 15 (1984), 97138
[1851] Nicaragua case, ICJ Rep. 1984, 392, at 420
[1852] Nottebohm case, ICJ Rep. 1953, 111, 1223.
[1853] 132 Cong. Rec. S1377
[1854] Ibid
[1855] See Dissenting opinions of Judges Guerrero and Basdevant in the Norwegian Loans case, ICJ Rep. 1957,
674

9100, at 68 and 75, and of Judge Lauterpacht in the Interhandel case, ICJ Rep. 1959, 6125, at 104. See also on
these cases E.K.M ertens, Norwegian Loans Case, EPIL 2 (1981), 21011; L. Weber, Interhandel Case, EPIL II (1995), 10257

[1856] R.Jennings/A.Watts (eds), Oppenheims International Law, I: Peace, (9th ed. 1992) 495
[1857] Corfu Channel case (Preliminary Objection), ICJ Rep. 1948, 1548, at 278
[1858] R. Plender, Rules of Procedure in the International Court and the European Court, EJIL 2 (1991), 130
[1859] Article 59, Statute of the ICJ
[1860] ICJ Reports 1992, p.351
[1861] See Generally R.Ago, Binding Advisory Opinions of the International Court of Justice, AJIL 85 (1991), 439
51;
S.M .Schwebel, Was the Capacity to Request an Advisory Opinion Wider in the Permanent Court of International
Justice than it is in the International Court of Justice?, BYIL 62 (1991), 77 118; H.W.A.Thirlway, Advisory
Opinions of International Courts, EPIL I (1992), 3843

[1862] Admission Case, ICJ Rep. 1948, 57119

[1863] Reparation Case, ICJ Rep. 1949, 174220
[1864] Legal consequences of the Construction of a Wall in Occupied Palestinian, [2004] ICJ Rep. 136
[1865] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ
Advisory Opinion of 22 July 2010

[1866] G.Herrmann, Commercial Treaties, EPIL I (1992), 67783

[1867] H.J.Hahn, Organisation for Economic Co-operation and Development, EPIL 5 (1983), 21422.
[1868] Skubiszewski, Use of Force, p.745 and L.Henkin, R.C.Pugh, O.Schachter and H.Smit, International Law Cases
and Materials, 3rd edn, St. Paul, 1993, p.893. See also 3rd US Restatement in Foreign Relations Law, St.Paul, 1987 p.27; Cot
and Pellet, Charte, p.115 and Simma, Charter, p.112; See Also 1970 Declaration on Principles of International Law.

[1869] Brazils attempt to prohibit economic measures in A.2(4) itself was rejected, 6 UNCIO, Documents, p.335. See
also L.M . Goodrich, E.Hambro and A.P.Simons, Charter of the UN, 3rd edn., NY 1969, p.49.

[1870] Nicaragua Case, ICJ Reports, 1986, pp.14, 128; 76 ILR 349
[1871] UNGA Res 2131 (XX); See Also 1970 Declaration on the Principles of International Law, UNGA Res 2625
(XXV) See also 1974 Charter of Economic Rights and Duties of States

[1872] Licklider, Roy (1988). "The Power of Oil: The Arab Oil Weapon and the Netherlands, the United Kingdom,
Canada, Japan, and the United States". International Studies Quarterly (International Studies Quarterly, Vol. 32, No. 2) 32
(2): 205226; Paust, Jordan J.; Blaustein, Albert P. (1974). "The Arab Oil WeaponA Threat to International Peace". The
American Journal of International Law (The American Journal of International Law, Vol. 68, No. 3) 68 (3): 410439

[1873]

Q. Wright, The Cuban Quarantine 57 American Journal of International Law, 1963, p.546 and
M .S.M c.Dougal, The Soviet-Cuban Quarantine and Self Defense, p.597; A.Chayes, The Cuban Missile Crises, (Oxford,
1974).

[1874] Jerrold J.Negin, The Case for Legitimate Interdiction of Commerce during Peacetime, 10 Georgia Mason
University Law review, 191, (1987-1989) 204.

[1875] Barry E. Carter, International Economic Sanctions: Improving the Haphazard U.S. Legal Regime, 75 Cal. L.
Rev. 1162, 1166

[1876]

Dinstein, Yoram, Siege Warfare and the Starvation of Civilians in Humanitarian Law of Armed Conflict:
Challenges Ahead Delissen, Astrid J.M . and Tanja, Gerald J. eds M artinus Nijhoff Publishers,
Boston, 1991 at 148-9.

[1877] Haight, The New International Economic Order and the Charter of Economic Rights and Duties of States 9
Intl Law 591,597 (1975)

[1878] Hossein Askari, Economic Sanctions: Examining their philosophy and efficacy, (Greenwood Publishing Company,
2003), 65.

[1879] G.Huffbauer & J.Schout, Economic Sanctions in Support of Foreign Policy Analyses in International Economics,
(1983) 4-22; R.Lillich, Economic Coercion and the New International Economic Order: A Second Look at some First

675

Impressions, 16 VA J. Intl L. (1976) 233,234; F.Crouzet, Wars, Blockades and Economic Change in Europe, 1797-1815, J.
of Economic History (1964) 567-88.

[1880] Gary Clyde Hufbauer, Jeffrey J. Schott, and Kimberly Ann Elliott, Economic Sanctions Reconsidered: History
and Current Policy (Washington, D.C.: Institute for International Economics, 1990), pp. 92-93.

[1881] Gary Clyde Hufbauer, Kimberly Ann Elliott, Tess Cyrus, and Elizabeth Winston, "U.S. Economic Sanctions:
Their Impact on Trade, Jobs, and Wages," Institute for International Economics, April 16, 1997, p. 3.

[1882] Nicaragua Case ICJ Reports, 1986m pp.14, 128; 76 ILR 349
[1883] Dinstein, War, p.81
[1884] R.Lillich, The Status of Economic Coercion under International Law: UN Norms, 12 Tex. Intl Law Journal, 17,
18-19 (1977) @ 19

[1885] M ohammed Ayoob, "The New-Old Disorder in the Third World," Global Governance 1, no. 1 (Winter 1995), pp.
5978; Christopher M . Ryan, "Sovereignty, Intervention, and the Law: A Tenuous Relationship of Competing Principles,"
M illennium: Journal of International Studies 26 (1997), p. 77; and Samuel M . M akinda, "Sovereignty and International
Security: Challenges for the United Nations," Global Governance 2, no. 2 (M ayAugust 1996), p. 149.

[1886] G. Fitzmaurice, The General Principles of International Law Considered from the standpoint of Rule of Law, 92
Receuil Des Cours 48-50 (1957)

[1887] E.Vattel, Law of Nations, 39 In Chitty, ed. 1883; C.Eagleton, International Government, 86-87 (3 ed. 1957)
[1888] ICJ Reports, 1986 pp.14, 108; 76 ILR p.442. See also M c. Caffrey, The 41 Session of the ILC, 83 American
rd

st

Journal of International Law 1989, p.937.

[1889] D. Bowett, International Law and Economic Coercion 16 Vanderbilt Journal of International Law, 245, 245-9
(1976).

[1890] A. Thomas & A.J. Thomas, Non Intervention, 409 (1956)

[1891] R.B.Lillich (ed.), The Valuation of Nationalized Property in International Law, Vol. IV, 1987
[1892] See G.Schwarzenberger, Foreign Investments and International Law, 1969, 849
[1893] Norwegian Ships case (1921), RIAA I 307, 338; Spanish Zone of M orocco case (1925), RIAA II 615, 647;
Shufeldts claim (1930), RIAA II 1079, 1095; M ariposas claim (1933), RIAA VI 338; de Sablas claim (1933), RIAA VI
358, 366; Arabian-American Oil Co. v. Saudi Arabia, ILR 27 (1958), 117, 144, 168, 205; American International Group, Inc.
v. Islamic Republic of Iran (1983), AJIL 78 (1984), 454; Sedco, Inc. v. National Iranian Oil Company and Iran (1986), ILM
25 (1986), 629, 6325, 6417.

[1894] Davis, Bob (2010-05-03). "IM F's Sweeping Demands Signal Shift - WSJ.com". Online.wsj.com. Retrieved 201005-30.

[1895] "Factsheet: Special Drawing Rights (SDRs)". International M onetary Fund. M arch 31, 2011.
[1896] See Articles of Agreement, Article 1, 2 UNTS 134 (1947) as amended by 606 UNTS 294 (1967)
[1897] http://www.iisd.org/trade/handbook/3_2.htm
[1898] WTO website, http://www.wto.org/english/thewto_e/thewto_e.htm; See also C. Deere, Decision-making in the
WTO: M edieval or Up-to-Date?

[1899] See Generally A. Kiss/D.Shelton (eds), International Environmental Law, 1991; P. Birnie/A.E.Boyle, International
Law and the Environment, 1992

[1900] OECD Doc.C(74)224, cited in P. Sands, Chernobyl: Law and Communication, Cambridge, 1988, p. 150
[1901] Resolution 37/7; Official Records of the General Assembly, Thirty-Sixth Session, Supplement No. 51 (A/36/51)
[1902] P.M alanczuk, Sustainable Development: Some Critical Thoughts in the Light of the Rio Conference, in
K.Ginther/E.Denters/ P.J.I.M .de Waart (eds), Sustainable Development and Good Governance, 1995, 2352

[1903] PCIJ, Series A, No. 23 (1929); 5 AD, p. 83.

[1904] 2 RIAA, pp. 829, 839 (1928).
[1905] 33 AJIL, 1939, p. 182 and 35 AJIL, 1941, p. 684
[1906] ICJ Reports, 1995, pp. 288, 306; 106 ILR, pp. 1, 28
676

[1907] ICJ Reports, 1996, para. 29; 35 ILM , 1996, pp. 809, 821.
[1908] ICJ Reports, 1997, pp. 6, 67; 116 ILR, p. 1.
[1909] Weiss, Edith Brown 1990, 'In fairness to future generations', Environment, vol. 32, no. 3, Apr., pp. 7-11, at p. 8
[1910] Denmark v. Norway, ICJ Reports 1993, p. 38
[1911] New Zealand v. France, ICJ Reports 1973, p. 99
[1912] Sustainable fisheries, including through the Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks, and related instrumentsReport of the Secretary-General

[1913] See, e.g., Harald Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental
Law, The Precautionary Principle: International Environmental Law Between Exploitation and Protection 344 (1994); James
Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the
Global Environment, 14 Boston College Intl & Comp. L. Rev. 1 (1991).

[1914] New Zealand v. France, ICJ Reports 1973, p. 99

[1915] See A/RES/46/167; A/RES/47/171; A/RES/49/111;

A/RES/61/197;

A/RES/61/195; A/RES/62/189;

A/RES/57/253;

[1916] PCIJ, Series A, No. 23 (1929); 5 AD, p. 83

[1917] Island of Palmas Arbitration, 2 RIAA pp.829, 839 (1928)
[1918] 33 AJIL 1939, p.182; 35 AJIL 1941, p.684
[1919] ICJ Reports 1949 pp.4, 22; 16 AD pp. 155, 158
[1920] Request for an Examination of the Situation in Accordance with Paragraph 63 of the Nuclear Tests Case 1974,
ICJ Reports 1995, pp.288, 306; 106 ILR pp.1, 28

[1921] ICJ Reports, 1996, para. 29; 35 ILM , 1996, pp. 809, 821
[1922] See UNCLOS 1982, Article 192 and Article 194 specifically, Principle 21 of the Stockholm Declaration, 1972 and
Principle 2 of the Rio Declaration, 1992.

[1923] G. Handl, State Liability for Accidental Transnational Environmental Damage by Private Persons, 74 AJIL,
1980, p. 525; Birnie and Boyle, International Law and the Environment, pp. 182 ff.

[1924] 33 AJIL, 1939, p. 182 and 35 AJIL, 1941, p. 681; 9 AD, p. 315
[1925] ICJ Reports, 1949, pp. 4, 223; 16 AD, pp. 155, 158
[1926] 8 ILM , 1969, p. 118.
[1927] G. Doeker and T. Gehring, Private or International Liability for Transnational Environmental Damage The
Precedent of Conventional Liability Regimes, 2 Journal of Environmental Law, 1990, p. 1.

[1928] Yearbook of the ILC, 1978, vol. II, part 2, p. 149.

[1929] See Report of the ILC, 53 Session, p.379.
[1930] Ibid, at p.586
rd

677

678

ndice
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]

618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
618
619
619
619
619
619
619
679

[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46]
[47]
[48]
[49]
[50]

619
619
619
619
619
619
619
619
619
619
619
619
619
619
619
619
619
619
619
619
620
620
620

680