Ombachi r.m/muriungi d.

m
3rd year. April 2005 lectures

Public International Law Lectures

A.O. Adede
Lecture 1
Introduction.
International law traditionally concerned itself with relations with
sovereign states but nowadays it also deals with relations between
natural and juridical persons. These are individual human beings and
incorporated companies. Individuals benefit from the protection of
international law but they cannot be described as proper subjects of
international law.
Multi-national corporations are busily engaged in international
transactions with states. Consequently new rules of law have been
developed to cover these relationships. However these corporations
fail to qualify as international subjects. States and international
organizations like the United Nations are the main actors on the
international community, the only entities with true international
personality and principal creators of international law.
The Minimum Standards of International Justice with respect to aliens
qua aliens.
Any of the following actions amount to denial of justice to
aliens.

Failure to inform an alien reason for his arrest

Failure to provide an alien with an interpreter if he needs one

Holding an alien incommunicado

Refusing an alien the right to consult their counsel

These were rights that were being reserved to protect aliens and
being enforced mostly in the developing countries and the Latin
American countries.
Doctrine
The

Calvo

Doctrine

(or

principle)

holds

that

jurisdiction

in

international investment disputes lies with the country in which the

investment is located; thus, the investor has no recourse but to use
the local courts. The principle, named after an Argentinean jurist, has
been applied throughout Latin America and other areas of the world.
It is a body of international rules regulating the jurisdiction of
governments over aliens and the scope of their protection by their
home states, as well as the use of force in collecting indemnities. The
doctrine was advanced by the Argentine diplomat and legal scholar
Carlos Calvo.
An Argentinean by the name Calvo said that we cannot assign
foreigners in our countries special treatment as this would be like
having two regimes in a country which would amount to political
monstrosity. Calvo developed the Calvo Doctrine and argued for
equality of treatment between nationals and aliens.

No special

regimes. An alien is supposed to accept everything in the host country

and no special treatment. Having minimum standard of international
justice to be observed with respect to aliens qua aliens was wrong.
This doctrine developed what became known as the Calvo clause. To
implement calvo doctrine required the calvo clause. Under the Calvo
clause Latin American countries decided that any foreign country

coming to do business in their countries, whether mining or any

activity under a contract will have a clause in that contract in which
the alien waives its right to ask its own government to espouse its
claim before the international court a claim.
Many countries in Latin America have worked under the Calvo
Doctrine until they started signing FTAs and BITs.
The Calvo Doctrine is a doctrine and not a law and basically says that
a country is sovereign and does not have to hand over their
sovereignty to an international court to resolve a dispute when
foreigners are involved.
http://www.britannica.com/needmoreInternational Law of Europe and
America in Theory and Practice (1868).
North American Dredging Co. v. Mexico
The company waived its rights ever to ask USA to bring the case
against Mexico. The Mixed Claims Commission found out that the
obvious purpose of the clause was to prevent abuse of the right of
diplomatic protection and to draw a reasonable line between the
sovereign rights of a state i.e. issue of jurisdiction and Diplomatic
protection. It stated that the clause was part of the contract and had
to be upheld unless it was repugnant to a recognized rule of
international law. It found further that a contractual clause purporting
to restrict or exclude the rights normally owed to an alien would be
valid to the extent that it did not preclude diplomatic protection for
violations of international Law.
An alien cannot deprive his government its right of diplomatic
protection in case of violations of international law nor may he
deprive himself of the right to apply to his government on the ground.
But in such a case the claimants complaint would be not that his
contract was violated but that he had been denied justice.

The commission declared that North American Dredging Company

had fully ignored the local remedies rule provided by Mexican Law.
The claimant having agreed to Article 18 of the Contract could not
rightfully present a breach of contract claim to its government for its
espousal and therefore the claim was unanimously dismissed.
The western world response to Calvo clause was that the individual
had no right to waive a states right.

This had to become a legal

jurisprudence of international law.

In the Mavrommatis Palestine Concession case the very issue was
settled when the permanent court of international justice said that
when a state Mavrommatis espouses the claim of its national to take
to an international tribunal, it had to be the state in its own rights and
its own interest rather than the individual involved. It is the state that
wants to assert its own right to ensure that its rights are being
asserted.
From the beginning the Western world was of the view that there was
no right to expropriate the property of aliens. They decided that the
rule to apply is when one expropriates property they must pay
prompt, adequate and just compensation if one must expropriate.
From this evolved the permanent sovereignty of natural resources.
They began to challenge the standard of prompt, adequate and just
compensation.

Under

the

principles

of

exercising

permanent

sovereignty the countries said they had the right to determine the
amount of compensation they paid.

The host state determines the

amount of compensation because they were the only ones who could
determine the value of the property.
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If for example an alien owed

taxes the amounts would be deducted. The developing countries won.

In 1974 there was a famous UN Resolution that adopted the Charter
of Economic Rights and Duties of States.
APPROPRIATE COMPENSATION.
Article 2 (c) provides that the state, which has expropriated the
property of aliens, has the right to pay appropriate compensation.
Once that state has arrived at a just compensation the amount is not
subject to any proceeding outside that country. No more taking cases
of expropriation to international court. This is how Libya responded
to Texaco Oil CO. in Texaco Oil Co. v. Libya and Libya applied the
charter of economic rights and duties principle and decided how much
was to be paid to Texaco. This case was heard by a French lawyer
and the question was how Libya could rely on a clause that had been
rejected by the rest of the world. The Judge ruled that Libya would
not rely on this Article as it had been rejected by the developed world.
This is a decision that favoured the Western World.
International Centre for Settlement of Investment Disputes.
The countries of western world got tired of these series of espousing
claims simply because as subjects of international law, companies had
no right to bring a case before an international court. In 1966 they
decided to negotiate a convention for settlement of investment
disputes between states and companies direct.

This convention

established a centre called International Centre for the Settlement of

Investment Disputes (ICSID) between states and companies directly.
The entire Latin American country rejected ICSID entirely because
they wanted aliens to have all issues settled at home. (Calvo Clause).
Once the country involved has accepted the jurisdiction of the centre,

it allows the company to approach the centre but insists that the
company exhausts the remedies available locally.
ICSID is thus a thriving institution in Washington D.C.
PART II
Exhaustion of local remedies.
Pannevezys Saldutiskis Railway Case before an alien can have his
case admitted in ICSID must have local remedies exhausted.
Establishing the local remedies rule Clear opinions, are all to the
effect that the principle of the exhaustion of local remedies lays down
a condition for generation of the international responsibility of the
State, were expressed by three other judges, namely, Judge Hudson in
his dissenting opinion in the Panevezys-Saldutiskis Railway case,1
Judge Cordoba in his separate opinion in the Interhandel case,
Judge Morelli gave a thorough definition of the principle of the
exhaustion of local remedies in the following terms:
"However, the local remedies rule, as a rule of general
international law, is in my view substantive and not procedural. It is
indeed a rule, which is supplementary to other rules, which also
themselves possess the character of substantive rules, namely the
rules concerning the treatment of foreigners.
"Those rules require from the States to which they are directed
a particular final result in respect of the treatment of foreign
1 Judge Hudson wrote:
"It is a very important rule of international law that local remedies must have been
exhausted without redress before a State may successfully espouse a claim of its national
against another State. This is not a rule of procedure. It is not merely a matter of orderly
conduct. It is part of the substantive law as to international, i.e. State-to-State, responsibility.
If adequate redress for the injury is available to the person who suffered it, if such a person
has only to reach out to avail himself of such redress, there is no basis for a claim to be
espoused by the State of which such person is a national. Until the available means of local
redress have been exhausted, no international responsibility can arise." (P.C.I.J. Series A/B,
No. 76, p. 47.)

nationals, leaving the State which is under the obligation free as

regards the means to be used. Consequently, if an organ of the State
which is under the obligation performs an act contrary to the desired
result, the existence of an internationally unlawful act and of the
international responsibility of the State cannot be asserted so long as
the foreign national has a possibility of securing, through the means
provided by the municipal legal system, the result required by the
international rule." (I.C.J. Reports 1964, p. 114.)

Mavrommatis Palestine Concession when the state brings a claim on

behalf of its own national it is exerting its right other than that of its
national
Chattin Claim elucidated and put down succinctly the concept of
denial of justice dealing with irregularities that open the way to
approach international court.
Interhandel Case merely confirmed that the exhaustion of local
remedies is a well-established principle of international law that must
be observed unless States dispense with this agreement under treaty.
If the state does not require local remedies to be exhausted, again
this case can be cited.
Ambatielos Case - this is the case that if you had a witness who could
come and help you in your case in the local court and failed to call
that witness and the court decided that had the witness come the case
would have been decided differently, it was decided that this would
amount to failure to exhaust local remedies. Failure to call a key
witness was declared to be non-exhaustion of local available remedies.
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The minimum standards of international justice to be observed with

respect to aliens qua aliens are:
1. Failure to provide an interpreter
2. Holding an alien incommunicado

PUBLIC INTERNATIONAL LAW 2

Civilized states - recognized major legal systems of the world
AN ACT OF STATE DOCTRINE:
Every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit in
judgment on the acts of another government done within its own
territory.

Redress of grievances by reason of such acts must be

obtained through the means open to be availed of by Sovereign

powers as between themselves. This doctrine was argued in the
following case.
BANCO NACIONAL DE CUBA v. SABBATINO, 376 U.S. 398
(1964)
376 U.S. 398
BANCO NACIONAL DE CUBA v. SABBATINO, RECEIVER, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT.
No. 16.

Argued October 22-23, 1963.

Decided March 23, 1964.
Respondent American commodity broker, contracted with a Cuban
corporation largely owned by United States residents to buy Cuban
sugar. Thereafter, subsequent to the United States Government's
reduction of the Cuban sugar quota, the Cuban Government
expropriated the corporation's property and rights. To secure consent
for shipment of the sugar, the broker by a new contract agreed to
make payment for the sugar to a Cuban instrumentality which
thereafter assigned the bills of lading to petitioner, another Cuban
instrumentality, and petitioner instructed its agent in New York to
deliver to the broker the bills of lading and sight draft in return for
payment. The broker accepted the documents, received payment for
the sugar from its customer, but refused to deliver the proceeds to
petitioner's agent. Petitioner brought this action for conversion of the
bills of lading to recover payment from the broker and to enjoin from
exercising dominion over the proceeds a receiver who had been
appointed by a state court to protect the New York assets of the
corporation. The District Court concluded that the corporation's
property interest in the sugar was subject to Cuba's territorial
jurisdiction and acknowledged the "act of state" doctrine, which
precludes judicial inquiry in this country respecting the public acts of
a recognized foreign sovereign power committed within its own
territory. The court, nevertheless, rendered summary judgment
against the petitioner, ruling that the act of state doctrine was
inapplicable when the questioned act violated international law, which
the District Court found had been the case here. The Court of Appeals
affirmed, additionally relying upon two State Department letters,
which it took as evidencing willingness by the Executive Branch to a
judicial testing of the validity of the expropriation. Held:

1. The privilege of resorting to United States courts being

available to a recognized sovereign power not at war with the
United States, and not being dependent upon reciprocity of
treatment, petitioner has access to the federal courts.
2. The propriety of the taking was not governed by New York
law since the sugar itself was expropriated.
3. This suit is not uncognizable in American courts as being one
to enforce the "public" acts of a foreign state since the
expropriation law here involved had been fully executed within
Cuba.
4. The Government's uncontested assertion that the two State
Department letters expressed only the then wish of the
Department to avoid commenting on the litigation, obviates the
need for this Court to pass upon the "Bernstein exception" to
the act of state doctrine, under which a court may respond to a
representation by the Executive Branch that in particular
circumstances it does not oppose judicial consideration of the
foreign state's act.
5. The scope of the act of state doctrine must be determined
according to federal law.
6. The act of state doctrine applies and is desirable with regard
to a foreign expropriation even though the expropriation
allegedly violates customary international law.
(a) Disagreement exists as to relevant standards of international
law concerning a State's responsibility toward aliens.
(b) The political

branch

can more

effectively

deal

with

expropriation than can the Judicial Branch.

(c) Conflicts between the Judicial and Executive Branches could
hardly be avoided were the judiciary to adjudicate with respect
to the validity of expropriations. Even if the combination alleged
in this case of retaliation, discrimination, and inadequate
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compensation

made

the

expropriation

here

violative

of

international law, a judicial determination to that effect would

still

be

unwise

as

involving

potential

conflict

with

or

embarrassment to the Executive Branch in later litigation.

7. A foreign country's status as a plaintiff does not make the act
of state doctrine inapplicable.
307 F.2d 845, reversed and remanded.
MR. JUSTICE HARLAN stated;
The question which brought this case here, .. is whether the so-called
act of state doctrine serves to sustain petitioner's claims in this
litigation. Such claims are ultimately founded on a decree of the
Government of Cuba expropriating certain property, the right to the
proceeds of which is here in controversy. The act of state doctrine in
its traditional formulation precludes the courts of this country from
inquiring into the validity of the public acts a recognized foreign
sovereign power committed within its own territory.
While acknowledging the continuing vitality of the act of state
doctrine, the court believed it inapplicable when the questioned
foreign act is in violation of international law. Proceeding on the basis
that a taking invalid under international law does not convey good
title, the District Court found the Cuban expropriation decree to
violate such law in three separate respects: it was motivated by a
retaliatory and not a public purpose; it discriminated against
American nationals; and it failed to provide adequate compensation.
Summary judgment against petitioner was accordingly granted.
Respondents, pointing to the severance of diplomatic relations,
commercial embargo, and freezing of Cuban assets in this
country, contend that relations between the United States and
Cuba manifest such animosity that unfriendliness is clear, and

11

that the courts should be closed to the Cuban Government. We

do not agree. This Court would hardly be competent to
undertake assessments of varying degrees of friendliness or its
absence,

and,

lacking

some

definite

touchstone

for

determination, we are constrained to consider any relationship,

short of war, with a recognized sovereign power as embracing
the privilege of resorting to United States courts. Although the
severance of diplomatic relations is an overt act with objective
significance
unwilling

to

in the
say

dealings

that

it

of

should

sovereign
inevitably

states, we
result

in

are
the

withdrawal of the privilege of bringing suit. Severance may

take place for any number of political reasons, its duration is
unpredictable, and whatever expression of animosity it may
imply does not approach that implicit in a declaration of war.

"Every sovereign State is bound to respect the

independence of every other sovereign State, and the
courts of one country will not sit in judgment on the
acts of the government of another done within its own
territory. Redress of grievances by reason of such acts
must be obtained through the means open to be
availed

of

by

sovereign

powers

as

between

themselves."
If a transaction takes place in one jurisdiction and the forum is in
another, the forum does not by dismissing an action or by applying its
own law purport to divest the first jurisdiction of its territorial
sovereignty; it merely declines to adjudicate or makes applicable its
own law to parties or property before it. The refusal of one country to
enforce the penal laws of another is a typical example of an instance
when a court will not entertain a cause of action arising in another

12

jurisdiction. While historic notions of sovereign authority do bear

upon the wisdom of employing the act of state doctrine, they do not
dictate its existence.
The act of state doctrine does, however, have "constitutional"
underpinnings. It arises out of the basic relationships between
branches of government in a system of separation of powers. It
concerns the competency of dissimilar institutions to make and
implement particular kinds of decisions in the area of international
relations. The doctrine as formulated in past decisions expresses the
strong sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder rather than
further this country's pursuit of goals both for itself and for the
community of nations as a whole in the international sphere. Many
commentators disagree with this view; 22 they have striven by means
of distinguishing and limiting past decisions and by advancing various
considerations of policy to stimulate a narrowing of the apparent
scope

of

the

rule.

Whatever

considerations

are

thought

to

predominate, it is plain that the problems involved are uniquely

federal in nature. If federal authority, in this instance this Court,
orders the filed of judicial competence in this area for the federal
courts, and the state courts are left free to formulate their own rules,
the purposes behind the doctrine could be as effectively undermined
as if there had been no federal pronouncement on the subject.
Barcelona Traction Light and Power Company Case (Belgium v. Spain)
[1970]

ICJ the shareholders of a Canadian company asked the

government of Belgium to take their case against Spain which had

expropriated their property. The ICJ decided that Belgium like Kitui
lacked locus Standi to bring the case against Spain on behalf of
shareholders of a company that was not organised in Belgium but in
Canada.

13

Diplomatic protection of nationals abroad = espousing a nationals

claim.
1.

On citizenship

This is the one issue in which international law has left to be in the
domain of national government which has the law that defines how to
confer that citizenship and how to withdraw it. It is an area, which
has been left to a state. Only a state can define who its citizens are.
The ICJ will not allow a national who holds dual citizenship to bring a
case against one of the countries he claims to hold citizenship. In the
case of Nottebohm (Liechtenstein v. Guatemala) duo citizenship is not
inimical.

The situation of statelessness is not favoured by the

international community and the international community has adopted

a United Nations Convention against statelessness. Nottebohm was a
German by birth (born in 1881) and very rich and in 1905 he moved
from Germany to Guatemala where he was doing a thriving business
and acquired Guatemalan citizenship. At that time his interest was to
protect his property because he was a German and German Property
after the 2nd World war was being expropriated.

He was living in

Guatemala. Nottebohm decided after the 2 nd World war to go back to

Europe and decide to live in Liechtenstein.

In the end Nottebohm

now claimed that his property that had been taken by Guatemala
should be returned to him and Guatemala refused on the ground that
Nottebohm was its national and according to them they had already
satisfied

his

claim

upon

Nottebohm to the ICJ.

which

Liechtenstein

agreed

to

take

The Nottebohm case produced another

principle

14

Since Nottebohm was a German and for expedience took the

citizenship of Guatemala and that since the end of 2nd world war he
left Guatemala and was living in Liechtenstein without going back to
Guatemala again for many years and yet it was also shown that with
respect to Liechtenstein he went back to his original state Germany,
he therefore did not show any genuine link with Liechtenstein and
therefore Liechtenstein could not bring his case against Guatemala.
In the early 60s learned publicists did not write works commenting
on court decisions because the courts in the case of Nottebohm went
haywire in deciding that Nottebohm had not established a genuine
link and thus almost rendering him stateless.

International jurists

heavily criticized the concept of genuine link that the courts pulled
out as this concept deals with ships.
1.

Nature and function of international law

International law relates with the problem of settling issues between

the subjects of international law like two states like Bamburi and
Franconia in relation to Mutakha Mambo.
2.

Sources of International Law

Article 38 of statute of International Court of Justice

On sources of international law therefore and combining with
the function of court of justice article 38 reads the court whose
function is to decide in accordance with international law such
disputes as are submitted to it shall apply
a.

International conventions whether general or particular

establishing rules expressly recognized by the states;

15

b.

International Customs as evidence of general practice

accepted as law;

c.

General principles of law recognised by civilised nations

(major legal systems of the world;

d.

Judicial decisions and the teachings of the most highly

qualified

publicists

of

various

nations

which

shall

be

considered subsidiary sources of international law.

International Convention
Covenants
Treaty
International Agreement
Protocol
Accord
Act
Memorandum of Understanding
Charter Charter of Economic Rights and Duties of States
DECLARATION
LEGAL STATUS OF EASTERN GREENLAND CASE
(DENMARK V. NORWAY)

Denmark made a declaration that their government would not seek to

occupy a portion of Greenland. The Danish Foreign Minister made the
declaration that the government of Denmark would not occupy that
part of Greenland and it was held to be binding. Greenland could rely
on this declaration to be legally binding. The law is that a declaration
16

made by a person with a legal right to do so is binding.

Recent

decision in the,

NUCLEAR TEST CASE (Australia v. France, New Zealand v. France)

[1974] I.C.J. Reports
Australia and New Zealand went to court for provisional measures or
interim measures of protection.
Article 41 the court shall have the power to indicate if it considers
that circumstances so require any provisional measures which ought
to be taken to preserve the respective rights of either party.
Does indicate mean that those measures can be complied with? The
argument that it may not mean compliance became overwhelming so
that at a later stage when people were negotiating another statute,
they said the court might prescribe provisional measures.
After the case went to court, before the court could decide, the
government of France made a declaration that they would no longer
conduct any test and the question was, was that a binding obligation
on the part of France on which Australia and New Zealand could rely
now that France had undertaken not to conduct any other test.

The

court reminded them of the interim declaration saying that a

declaration by a person with authority to make it can indeed bind the
state in the same way the person is bound and therefore the
declaration was legally binding and the court considered the case
moot.

17

Vienna Convention on the Law of Treaties 1969 this is the treaty that
laid down the rules on how treaties would be laid down and
negotiated. It said that a treaty is an instrument between states or
other subjects of international law governed by international law. It is
an agreement governed by international law in written form. Whether
in a single or more documents and whatever its designation. If it is
governed by international law and it is produced in writing in a single
form or more documents it will still be a treaty.
Exchange of Notes note verbale if the delegation of Bulgaria visits
Nairobi and has an appointment to meet with their counterpart i.e. a
minister of the same portfolio

when the Minister of Bulgaria goes

back home, he writes a notes verbale (the minister of Bulgaria present

his compliments etcetera) exchange of notes verbale can become lead
to the signing of an international agreement.
MOU Conventions as sources of international law
The holding is that statements made by persons believed to
represent

country

are

binding.

We

are

dealing

with

individuals who make declarations that are binding.

1.

The UN resolutions/declarations are not legally binding

because they are political in nature and they do no more than
indicate the direction in which countries want to move and
no state can rely on these resolutions because the way they
are framed they are not framed in language that can be
legally binding.

It provides inspiration for states to use in

18

other legally binding instruments.

Nobody is required to

accept a UN resolution as domestic law.

A declaration and a covenant compared one finds out that there are
things in the declaration that are not found in a covenant.
Only the parts of a declaration that have been incorporated in the
covenant are binding.

After the Universal Declaration of Human

Rights promulgation, certain states and courts used the declarations

to rule on issues of human rights.
In the case of Japan it requires an enlightened court to incorporate
declarations in its rulings.
The UN Security Council also passes resolution.

The latest is

resolution on terrorism in which it created a counter terrorism

committee and asked states to report on the measures they are taking
aimed at fighting terrorism. This resolution is being complied with by
all states as if it were legally binding.
Kenya has made 3 reports concerning this resolution and is reporting
on the measures they are taking to comply with the Security Council
Resolution under Chapter VII.
Charter of Economic Rights and Duties of States this was drafted
creating rights and obligations.

When this has been drafted, the UN

can use the draft and turn it into a treaty that is then presented to
governments at a conference. They normally do this in the general
assembly and when discussion is complete, they pass a resolution;
they annex the text of the charter.

19

The UN Resolution that contained the Economic Rights and Duties of

States is what Gaddafi had relied on in the case of Texaco Oil v.
Libya case.
Charter connotes legally binding instruments this is why when states
decide that they have found a problem which they think can only be
dealt with through internationally concerted effort and which require
a legal framework, they ask whether they need a charter or legally
binding principles.

If they are not prepared to enter into legally

binding principles, they enter into a code of conduct e.g. code of

conduct for transfer of technology.

Code of conduct for liner

conferences which are later translated into conventions where they

become legally binding.

A code of conduct is usually just for

guidance.
The law of state responsibility emerged out of excessive concern of
the western with concern of their nationals abroad.

The law has

evolved and now only deals with a wrongful act which a state
conducts against another state. Direct injury to state when there is
violation of a treaty or in a tort situation.
The responsibility which a state has arising from injury to alien is
called vicarious responsibility as opposed to direct responsibility. A
state engages vicarious liability if it arise from the right or failure to
protect an alien.
Rules like exhaustion of local remedies are supposed to allow states to
do justice with their local means. Local remedies rule also performs
the function of allowing states to appreciate their international
responsibilities by preventing injuries.

20

The International Law Commission of United Nations has taken close

to 15 years studying the law of state responsibility having been
emancipated from concern with injuries to aliens so it becomes a
concern.
The law of state responsibility which is bound with protection of
foreign aliens is now emancipated to law that deals with.

ACT OF STATE DOCTRINE:

Every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit in
judgment on the acts of the other government done within its own
territory. Redress of grievances by reason of such acts must be
obtained through the means open to be available by sovereign powers
as between themselves.
Barcelona Traction Light and Power Company case (Belgium v
Spain) [1970] ICJ. A Canadian company asked the government of
Belgium where they were doing business to take their case against
Spain. ICJ decided Belgium lacked locus standi to bring the case
against Spain on behalf of the shareholders of a company that was not
organized in Belgium but in Canada.
Citizenship
This is the one issue the international law has been left in the domain
of national government, i.e. only the state who can decide who is the
citizen.
Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Reports 4.
Nottebohm was a German by birth during 1935 he moved from
21

Germany to Guatemala where he was doing a thriving business and

acquired Guatemalan citizenship. At that point his interest was to
protect his property (as the allied powers were seizing property of
Germans). After the World War II he decided to go to Liechtenstein
where he also acquired citizenship. In the end Nottebohm now
claimed that his property that had been taken by Guatemala should be
returned to him and Guatemala refused on the grounds that
Nottebohm was their national upon which Liechtenstein agreed to
take Nottebohms case against Guatemala. ICJ decision: since
Nottebohm was a German and for expedience took the citizenship of
Guatemala and since the end of the Second World War he left
Guatemala and was living in Liechtenstein without going back to
Guatemala and he went to Germany and only briefly in Liechtenstein,
therefore did not show genuine link with Liechtenstein and
therefore Liechtenstein could not bring his case against Guatemala.
The idea of genuine link is also used in the legislation of ships.
International lawyers heavily criticized the decision of ICJ. Decision
rendered Nottebohm stateless.
UN Convention against statelessness

Issues
1.

Nature and functions of international law: Settling issues of

subjects of international law.

2.

Sources of international law: treaty. Article 38 of the statutes

of the ICJ: The court whose function is to decide in
accordance with the international law such disputes as
submitted to it shall apply:
22

(a)

international conventions whether general or particular

establishing rules generally recognized by..

(b)

international custom as evidence of general practice

accepted as law

(c)

general principles of law recognized by civilized

nations

(d)

judicial decisions and the teaching of the most highly

qualified publicists of the various nations

convention
treaty
international agreement
protocol
accord
act
memorandum of understanding
charter
note verbale, exchange of notes
Vienna Convention on the law Treaties 1959the treat of treaties:
Said that a treat is an instrument between states or other
international organization governed by international laws in written
form whether in a single or more documents and whatever its
designation.
Exchange of notes: note verbale.

Public International Law-Lecture 3

24 June
23

Trieppel and Strup were the dualists: international law and municipal
law are separate, each with its own sphere and none can oust the
other. International law supposed to regulate relationships between
states among themselves inter se. Domestic laws regulate the conduct
of individuals within the state.
Kelsen and Lauterpacht, these were the monists: we have to see areas
where there might be a conflict and according to them international
law should take precedence where there is doubt. International law
takes over where domestic law stops.
The coordination: coordinating the two systems of law to arrive at a
solution that is judicially defensible.
A case concerning a German

is quoted the world over for the

proposition that the state cannot be permitted to evoke its domestic

law to

avoid an international obligation (where a treaty has been

signed).
Article 34 of the ICJ: only states can be parties in cases before the
court.

Self-determination right of citizens to determine their own destiny

without outside interference.
The force to intervene to deal with situations of chaos is a collective
decision, i.e. does not belong to one state.

24

Being invited becomes a legal argument for the intervening party.

Being invited by itself is not conclusive.
RECOGNITION OF A STATE
It is a term that is used to refer to a situation in which a state
conducts normal international relations with other states, which it
recognizes. Distinguish between recognition of states and recognition
of a government. Once a state is recognized it remains recognized.
You may not want to deal with a particular regime:
1. Government de jure
2. Government de facto
Theories of Recognition
Two theories.
1. Declaratory recognition. Have declared myself I am.
2. Constitutive theory of recognition. Recognition by several
states.
AU: shun governments that come to power unconstitutionally, i.e.
through the bullet.
3. The Estrada theory. Estrada was a Mexican foreign minister
who said a government should not be denied recognition
irrespective of how they got to that position. President Wilson
refused to recognize the Huerta regime in Mexico that
emerged

through

revolution.

This

was

positive

non-

recognition.
Recognition is a very important act. We need a stable frontier. We
need a self-generating population. An act of an unrecognized state
25

What is a belligerent?
ADIZ
Extradition is governed by treaty. There is no customary law in
extradition. Extradition treaty between the two countries operates. It
will spell out the extraditable offence and the procedure in the
domestic country in which the extradition is required to determine
whether the offence is extraditable.
States are always reluctant to extradite their own nationals, even
when there is a treaty. Political offences: nobody should be extradited
for a political offence.
You will only be tried on that only for which you extradited.
Commonwealth

extradition

treaty.

But

you

can

vary

it.

UN

Convention Against Taking Hostages has a provision saying that if

a hostage taking situation arises between two states that have no
extradition treaty between them, they can use this convention to
effect extradition.

PUBLIC INTERNATIONAL LAW Lecture 4

ASYLUM
Question of Asylum Mrs. Nyabera seeks protection from the
Embassy of Dandora. An embassy is protected and nobody can enter
26

an embassy without permission of the owners of the embassy.

An

embassy is inviolate. This is under United Nations Conventions and

Privileges.
It was claimed that Mrs. Nyabera was a political offender and
seeks safe conduct. This is what happened in the,
Asylum Case (Columbia v. Peru [1950])
A Peruvian Leader named Haya de la Torre had led a rebellion in Peru
and was just about to topple it just like Nyabera. In the same pattern
Haya ran and sought protection in the Colombian embassy in Peru.
The Colombian Ambassador said that Haya was a political offender
and must be given a safe exit out of Peru.

This became a matter

referred to international court of justice for determination. The court

decided that it is a 3rd party procedure that can determine whether or
not Haya was a political offender and therefore entitled to safe
passage.

The court rejected the Colombian ambassador unilateral

decision to characterize Haya as a political offender entitled to safe

conduct. The court also rejected the Peruvian claim that Haya was a
common criminal because he had been trying to overthrow the
Peruvian government. No particular person can determine whether a
person is a political offender. Only an international court can decide.
He was entitled to asylum but safe conduct was to be negotiated.
Only those who commit political offences will be treated in a political
way.
ASYLUM AND THE LAW OF DIPLOMATIC PROTECTION:
An

Ambassador

was

called

His

Excellency,

plenipotentiary titles that are maintained to this day.

27

Extraordinary,
They were

addressed as Plenipotentiary because they were full of power to

represent their governments and extraordinary because they could
make decisions without referring to their governments.
Article 2 paragraph 7 of the Charter of the United Nations: Nothing
contained in the present charter shall authorise the United Nations to
intervene in matters which are essentially within domestic jurisdiction
of any state or shall require the Members to submit such matters to
settlement under the present charter; but this principle shall not
prejudice the application of enforcement measures under Chapter VII.
Connolly Amendment it is the State itself that can determine that a
matter is within its jurisdiction. The charter says that UN shall not
intervene in matters that are essentially within the jurisdiction of the
state. It is under this article that for years South Africa prevented the
whole world from discussing Apartheid because apartheid was a
matter within the jurisdiction of South Africa and there is nothing the
international community could do except to make South Africa a
pariah. Governments could have nothing to do with South Africa by
trade sanctions, diplomatic sanctions as the countries could not use
force to force South Africa to abandon apartheid.
This was the case until human rights begun to catch on, a state could
treat its citizens in any way it could without a care.
The United Nations Covenant on civil and political rights
The United Nations Covenant on economic and social rights
Now we have a treaty that can be enforced against a state

28

Connolly Amendments an amendment where a state reserves the

right to determine what is within its own jurisdiction.

Bulgaria

invoked the Connolly Amendment when they shot down an American

aircraft in their airspace and America became a victim of its own
wickedness.
The use of force in international relations is prohibited under
Article 2 paragraph 4 of the UN Charter
Which says that all members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of another state or in any other
manner inconsistence with the purposes of United Nations.
It is noted that from this the UN Charter is a form of a treaty in which
the member states accept the obligation to refrain from matters which
are not within the jurisdiction of their state and to refrain from the
use of force.

This is the formula used after the 2 nd World War to

protect and preserve territorial integrity and political independence.

If there is a dispute between two small states, the dispute persists but
if it is between a big state and a small state, the small state
disappears. If the dispute is between two powerful states, the dispute
will disappear.
Article 53 of the Charter of the United Nations which states
the security council shall where appropriate utilise regional
arrangements.

29

The Latin American countries popularized the use of regional

arrangements before approaching the United Nations. They had the
Organization of American States that could deal with regional issues.
In Africa they can first try the Organization of African Unity first
before approaching the United Nations.
The Charter of the United Nations is not only a treaty but it is also a
constitution in that it contains provisions that define the powers and
functions of the major organs established under it.
1.

The General Assembly is the organ of the UN in which all

member states that are independent up to now except one
are represented and each has one vote. Until two years ago
there were two Switzerland was not a member of the UN but
now it is. Liechtenstein is not a member of the UN.

2.

Security Council

3.

Economic and Social Council referred to as ECOSOC

4.

Trusteeship council

5.

International Court of Justice

6.

The Secretary General of the United Nations.

These are the 6 major organs of the UN whose functions are

described in the Charter. By Kenya becoming a member of the UN it
does not necessarily mean that it has accepted the jurisdiction of the
ICJ.
Veto:
Article 23 of the UN Charter
States the Composition of the Security Council.

30

 the Security Council shall consists of the 15 members of United

Nations, Republic of China, France, Union of Soviet Social Republic,
United Kingdom of Great Britain and Ireland and the United States
shall be permanent members of the security council. The general
assembly shall elect other 10 members to be members of the Security
Council.
Article 27 of the Charter deals with the vote of Security Council
each member of the security council shall have one vote. Paragraph
2 decisions of the Security Council on procedural matters shall be
made by an affirmative vote of 9 members.
Decisions of the Security Council on all other substantive matters
shall be made by an affirmative vote of 9 members including the
concurring votes of the permanent members.
A state only needs 9 votes out of 15 but the 9 must include the 5
permanent members and if any of the 5 permanent members does not
agree, even with the other 12 the decision is not adopted.
It would seem as if the United Nations was never intended to take
action against any of the 5 permanent members or their friends. If the
US for example has done something wrong e.g. like by going to Iraq, a
resolution cannot pass because the US will veto it.
Article 24 of the Charter of the United Nations assigns to the
Security Council the primary responsibility in the maintenance of
international peace and security. In order to ensure prompt action
by the UN its members confers on the Security Council primary
responsibility of maintenance of international peace and the Security
Council will act on behalf of their members.
31

The Security Council

under this article was supposed to act as a fire brigade just put out
the fire but the opposite happens with the Security Council, when
there is war, the Security Council discuss the options instead of just
putting out the fire and this has paralysed the United Nations.
Article 14 of the Charter of the United Nations reads as follows
subject to the provisions of article 12 the general assembly may
recommend measures for the peaceful adjustment of any situation
regardless of origin which deals to impair the general welfare of
friendly nations amongst states.
Asylum
Political offender
Safe conduct
Asylum case (Colombia v Peru). In that case a Peruvian leader of a
revolution called Haya dela Torre. Sought refugee in Columbian
embassy. Columbian ambassador held Haya dela Torre was a political
offender but Peru argued that he was not a political offender. So they
went to ICJ and held that only a third party such as the court can rule
on whether he was a political offender. But the court held that Peru
was wrong to characterize Haya dela Torre as a common criminal.
Therefore he should be given safe conduct.

Extraordinary
Plenipotentiary

32

Article 2 (7): nothing contained in this charter shall authorize the UN

to intervene in matters that are within the jurisdiction of any state
Connally Amendment: it is the state itself which will determine that a
matter is within its jurisdiction. At it was under this article that South
African prevented the whole world from discussing apartheid.
PROBLEM 2:
PART ONE UPTO PARAGRAPH 8
Civil Strife with International Implications:
Does international law permit violation of airspace in case where
countries want to airlift their nationals?
States have used the excuse that they have been invited by the
government in power especially where the said government is
overwhelmed by civil strife.

In the cold war, this was a recipe for

disaster because the opposition will also ask another friendly

government to intervene to protect them from the government in
power. As soon as a civil strife torn country invited say USA, the USSR
would rush to the oppositions rescue. This developed into cynicism
where it was alleged that the superpowers were using unfortunate
situations to test their latest weapons.
International law states that the question of inviting a foreign state to
the rescue violates the sovereignty of that nation and interferes with
the rights of the nationals to decide on their own problems. The law
sanctions against continued loss of life, genocide and unacceptable

33

use of force.

The United Nations uses collective legitimate use of

power to end genocide and loss of life.

It has always been the excuse that even where no other party
intervenes, a state is always being criticised for inviting external
forces.
Is the invitation the all and be all?

Can one question the

circumstances under which the invitation is issued? An argument in

PIL is never conclusive, when the only organ that has the right to use
force (UN) enters the scene the first thing they do is to ask that the
combatants cease fire. When a nation intervenes to supply arms for
the rebels who are de-stabilising the legitimate government they are
accused of meddling.
Recognition of a state: this is a term used to refer to a situation in
which a state conducts normal international relations business with
another state which it recognises as a state i.e. by opening embassies,
negotiating agreements ,or making a statement recognising it as a
state. Once a state has been recognised, it will continue to exist as a
state. A Government de jure and a Government de facto.
The de jure is the one that possess the sovereignty having been in
power but is being prevented from exercising that power.
De facto does not have the sovereignty but is busy trying to exercise it
(opposition)
If the de facto government is trying to usurp power by use of bullet
other than ballot, then that government ought to be denied
recognition. This brings to mind two theories of recognition
34

1.

Declaratory the opposition has declared as the government

of Elgon;

2.

Constitutive however much one declares to be a state,

nobody will care until a body or a state like the UN or OAU
decide to recognise that state. EU now has in its charter that
where governments are coming to power through coups are
no longer acceptable. If a govt comes to power through the
gun this leads to the Estrada Theory Estrada was the
Mexican foreign minister who took the position that even if a
govt comes to power through the barrel of the gun, he should
not be denied recognition. All governments that emerge and
become de jure have sovereignty and control of the country
should be recognised irrespective of how they come into
power.

Estrada was responding to a situation in which

President Wilson of USA refused to recognise a regime that

came into power in Mexico through a revolution which was
spearheaded by Huerta.

Wilson refused to recognize the

Huerta regime and said that he would never recognise the

Huerta regime (this is positive non-recognition) if there is
ever to be relations such a regime, another positive
statement of recognition would be required. Recognition is
an important political act.

It took the USA 20 years to

recognise China.
What is a state? It is more than a national anthem or its currency, it
consists of the general population etc.
International law allows a state to pick its friends through established
rules of international law.

35

By remaining neutral or silent, a state could find itself being accused

of taking sides.
Belligerency section of the state which is competing to control
power of that state i.e. in this case Nyabera (leader of opposition) it is
entitled to protection as a belligerent and therefore allowed to
request help on its own behalf.

EXTRADITION:
Extradition is only governed by treaties and there is no customary law
of extradition. This means that arresting someone who is alleged to
have committed a crime somewhere else or in ones own country but
against the interests of another country,
Nobody can be extradited to stand trial in another state except in
accordance with the extradition treaty between those two states. In
the treaty of extradition the parties will spell out the extraditable
offences. They will list the crimes for which they agree to turn over
the offenders through the treaty.
Before somebody is turned over the state being requested must see to
it that the offence for which extradition is required is checked by the
domestic state to determine whether the extradition is proper. There
has to be a procedure followed to determine whether to extradite or
not.
No state likes to extradite its own nationals to stand trial elsewhere
especially if the crimes they are accused of can be dealt with locally
whether there is a treaty of not. This is a state practice.
36

There is a big defence against extradition which is a political defence

namely nobody should be extradited for a political offence. Political
offence being so broad one may be accused with all kinds of charges
that are politically motivated.
If one is extradited because the offence is enumerated in that treaty,
one will only be tried only for that offence that they were extradited
i.e. if one is extradited for embezzlement, they cannot again charge
you with any other offence even if it is shown that apart from
embezzlement you are selling drugs.
After Kenya attained independence, Her Majesty convinced Kenya to
subscribe to the Commonwealth Extradition Treaty. Please note that
the treaty can be varied depending on each case.

The United

Nations Conventions against taking of Hostages has a provision

saying that if a hostage taking situation arises between two states
who have no extradition treaty between them but if they are a party to
the UN hostage convention, then they can use it to effect extradition.
Collusion under International Law:

Kenya criticised for allowing

Israel Entebbe raid casualties to be treated in Nairobi. There is no

law against collusion. There is however retortion, which means that
one state, can withdraw a favour originally granted.

International Public Law-Lecture 5

8 July 2004
The famous article of the Charter of the United Nations:-

37

Article 33 (1):
The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall,
first of all seek a solution by negotiation, enquiry, mediation,
conciliation,

arbitration,

judicial

settlement,

resort

to

regional

agencies or arrangements, or other peaceful means of their own

choice.
1. Negotiation
2. Enquiry
3. Mediation
4. Conciliation
5. Arbitration,
6. Judicial settlement
7. Regional arrangements
Good offices -- entered in the 1950s, where a third party enters to
make an inquiry; it is informal. The third party is acceptable to both
parties. It is a mailbox services.
A mediator is different from somebody offering good offices. A
mediator has the power to study the situation from the result of the
enquiry and suggest how to solve the problem, offers solutions to the
problems as he sees them. A person offering good offices may become
a mediator.
Proximity talks, instead of shuttle diplomacy.
Conciliation: elucidates the problems, and is usually several not one,
with a chairman: hence conciliation commissions.

38

Negotiation-enquiries-mediation-conciliation-good

office:

Informal

non-compulsory procedures for the settlement of disputes, meaning

that whatever solutions arrived can be rejected by any of the parties.
So it is heavily politicized.
And this is why states hesitate to go to the next step: arbitration.
Once again arbitrators appointed like mediators. The arbitrators are
actually judges and the result is binding upon the parties. Known
otherwise as compulsory procedures.
States reluctant to move to the arbitration state, which closes in on
judicial settlement (through pre-constituted courts).
Arbitration is ad hoc. Judicial settlement you chose a court that
already exists.

1962: Ethiopia and Liberia bring a case against South Africa over the
League of Nations trusteeship of South-West Africa. ICJ Agreed the
two countries had the procedural rights to bring the case before the
court.
Four years later, in 1966, the ICJ decides that although Ethiopia and
Liberia have the procedural rights to bring the case, they did not have
any of their citizens in South Africa suffering the injury of apartheid;
therefore the court could not offer judicial. A Pakistan judge excused
himself, thus allowing the majority to make that decision.
Under article 24, a judge can excuse himself by informing the
president of the court.

39

The decision led to a boycott of ICJ by African countries: ICJ was a

white mans court dispensing white mans justice.
15 years later after the Security Council had decided to take away the
control of South-west Africa from South Africa and South Africa
refusing to leave.
The

UN

created

the

Council

for

Namibia

to

take

over

the

administration of South-West Africa from South Africa, renamed

Namibia. The Council even passed laws to control the mines in
Namibia.
But South Africa continued to sit tight. So in 1971 the Security
Council asked ICJ for an advisory opinion on South-West Africa,
whether South African action was a violation of international law. The
ICJ. The ICJ gave an opinion favourable to Africans and from then on
African countries began taking cases to ICJ.
Article 53, paragraph 1 of the Statutes of ICJ: when one of the parties
does not appear before the court or fails to defend its case the other
side may ask the court to rule in its favour.

Do no harm+ Equitable utilization

Problem 3

1962: Ethiopia and Liberia bring a case against South Africa over the
League of Nations trusteeship of South-West Africa. ICJ Agreed the

40

two countries had the procedural rights to bring the case before the
court.
Four years later, in 1966, the ICJ decides that although Ethiopia and
Liberia have the procedural rights to bring the case, they did not have
any of their citizens in South Africa suffering the injury of apartheid;
therefore the court could not offer judicial. A Pakistan judge excused
himself, thus allowing the majority to make that decision.
Under article 24,a judge can excuse himself by informing the
president of the court.
The decision led to a boycott of ICJ by African countries: ICJ was a
white mans court dispensing white mans justice.
15 years later after the Security Council had decided to take away the
control of South-west Africa from South Africa and South Africa
refusing to leave.
The

UN

created

the

Council

for

Namibia

to

take

over

the

administration of South-West Africa from South Africa, renamed

Namibia. The Council even passed laws to control the mines in
Namibia.
But South Africa continued to sit tight. So in 1971 the Security
Council asked ICJ for an advisory opinion on South-West Africa,
whether South African action was a violation of international law. The
ICJ. The ICJ gave an opinion favourable to Africans and from then on
African countries began taking cases to ICJ.

41

Article 53, paragraph 1 of the Statutes of ICJ: when one of the parties
does not appear before the court or fails to defend its case the other
side may ask the court to rule in its favour.

Do no harm+ Equitable utilization

Problem 3
29th

PUBLIC INTERNATIONAL LAW Lecture 6

July 04
LAW OF THE SEA:

From the time sailors ventured into the sea, there was a problem of
how far they could go. Coastal states where fishermen go seaward
looking for fish since time immemorial, it was a problem as to how far
the state would extend its jurisdiction to the sea.

Two competing

concepts were debated in the early 1600.

John Selden said that the sea was closed or closed sea mare
clossum

that the sea only belonged to countries with coasts. This

was opposed by a Dutch Jurist Hugo Grotius who argued for the
freedom of the sea and that all countries could come to the sea and do
whatever they wanted freedom of the sea mare liberum.
won.

Grotius

Which means that the High Seas belonged to everybody and

other countries can come and enjoy.

But the declaration of the

freedom of the sea concept did not settle 1930 the question of
determining the extent of coastal state jurisdiction sea-ward how far
coastal state can extend their jurisdiction in the sea.
remained unanswered.

From 1600

Some extended their jurisdiction 3 nautical

miles others 12 and some 20 nautical miles as territorial sea.

42

In 1930 the League of Nations decided to undertake a study of the

Law of the Sea to see if they could settle the question the breadth of
territorial sea. The League of Nations to codify the Law of the Sea
failed and the question of coastal jurisdiction remained unanswered.
3 Nautical Miles was declared by the USA argument has it that that
was the distance of a canon ball shot at the coast. The USA was only
going to acquire territory that it could defend.
In the early 40s after failure of the League of Nations to settle the
issue there emerged a number of unilateral declarations by states
extending their territorial sea.
In 1947 Harry S Trumans Proclamation brought in the concept of the
doctrine of Continental shelf. Truman said that the coastal state
jurisdiction should be on the basis of the continental shelf which he
described as a natural prolongation of the land mass.

At this time

1947 -1950 in response to Truman some states extended their

territory to 100 nautical miles and most South American countries
extended their jurisdiction to 200 nautical miles of territorial sea.
The United Nations decided to codify Law of the Sea so from 1950
1958 the UN was studying and trying to codify international law of the
sea.

In 1958 the Geneva Convention on the Law of the sea was

passed. Four conventions were actually passed, one on territorial sea,

one on continental shelf, one on High Seas and one on fisheries
jurisdiction. At this time apart from the countries that had declared
200 miles, the world was beginning to realise it was perhaps not
realistic. The Vienna convention accepted the natural prolongation of
the land mass theory but one can follow the land mass to the extent it
permits exploitation. This became the law of the sea as was produced
43

in 1958.

this was the first UN conference on the Law of the Sea.

UNCLOSE I
In 1960 the United Nations there was another convention exclusively
devoted to solving the Fisheries jurisdiction UNCLOSE II.
failed miserably.

This one

Richard Quenton claimed UNCLOSE II was not a

total failure as he met his future wife here. It failed because it was
unable to answer the crucial question of how far the state could
extend fishing jurisdiction.
Not all countries have continental shelves.

There are those shelf-

locked countries which do not even have a coast to speak about.

There are other countries with shelf continuing to the deep sea and
those that have straight coast lines. The legal definition of continental
shelf

became

the

continental

shelf

proper,

continental

continental rise which equals to continental margin.

slope,

Some states

claimed upto to 600 miles some 500, some 400, some 3000 some landlocked and others with barely a shelf how was an agreement to be
arrived at?
It was discovered that countries like Japan could roam the world and
were fishing from coasts of other countries.

The United Nations

convened the 3rd United Nations Conference on the law of the Sea
UNCLOSE III this is the one that for almost 8 years began to unravel
all the problems of the continental sea shelf.

It was agreed that

efforts must be made to get a solution on how far a state can extend
jurisdiction and the rest would be high seas and whatever was in the
High Seas was to be declared common heritage of mankind.
The seabed, the sub-soil and the resources thereof beyond the limit of
natural jurisdiction were declared common heritage of mankind and
44

cannot be expropriated by any state but can only be exploited on

behalf of mankind.
It took almost 9 years to come to an agreement. The states finally
negotiated and arrived at an agreement all the countries wanted a
new law of the sea and were ready to agree. In this effort there was
an appeal for all the states to have a territorial sea that extended only
upto 12 nautical miles so now all countries of the world have
territorial seas of up to 12 nautical miles.
Kenya came up with the concept of Exclusive Economic Zone and
floated the idea Frank Njenga the legal adviser in the Ministry of
Foreign Affairs suggested at the meeting of African, Asian Legal
meeting suggested that they tried an area in which the state exercised
less than complete sovereignty.
exclusive economic zone.

The area was to be called an

The question was how far could the

exclusive economic zone extend? What was to be the regime of the

economic zone?
Landlocked states jumped in and EEZ and wanted to share in the
resources of the EEZ.

The Africans met in Kampala and made a

declaration on the Law of the Sea in 1985.

Landlocked states of

Africa would exploit the EEZ resources with the same rights as coastal
nations. This was taken to the 3rd World Caucus where the proposal
was rejected.

However, it remained a concept of EEZ remained a

viable concept that was finally accepted and is written in the Law of
the Sea. A country can now have 12 nautical miles of territorial sea
and 188 nautical miles EEZ making it a total 200 miles of jurisdiction.
Within the EEZ a coastal state permits other states the right of overflight and they can layout pipelines, can install submarine cables
45

within the EEZ of a state but with that states consent.

In the

exclusive economic zone, no state can do any research of any kind

without the consent of the coastal state. consent regime on scientific
research and the treaty enumerates the rights and obligations of the
states that want to conduct research on the EEZ, the coastal states
have to approve. Since it is the Western world that have the capacity
to do the research, it became clear that the Western World were not
going to accept the consent regime, the Western World Engineers
manipulated another clause that provides that although there was the
consent regime, they would introduce the concept of implied consent
meaning that if a Norwegian Government ship sent an application to
come and study the mating habits of Lobsters and answered all the
questions as required by the treaty, if they wait for 3 months without
consent, there is implied consent and they can now come and do their
research. States have the right of not being held hostage by other
nations. This implied consent became a big problem to the 3rd world.
The law of the sea took so long to succeed.

Some countries have

concave coasts, other convex coasts. The Geneva Convention of 1958

had a provision saying that the states with opposite or adjacent coasts
were to delimit their territories by medium equidistant lines which are
drawn in such a way such that the states with convex and those with
concave could avoid being cut off. But the states with straight line i.e.
between Germany and Netherlands, the question of the use of the
Median/Equidistance line to delimit was tested.

Here the court

advocated equitable principles of delimitation so that a state could

avoid

an unjust

result.

Where

it

was

possible

to

use

the

Median/Equidistance line one could use where not one could use
other methods of delimitation and up to today the Law of the Sea
failed to reach an agreement on the method of delimitation. Look at
the Pemba Channel delimitation.
46

In the area of managing the fisheries, every state has the right to
sustainably develop the resources of the EEZ as follows:
Our scientists must tell us that for the Lobster in order to achieve
avoiding over-utilisations and under-utilization of the species, the
scientists must every year tell us how to maintain maximum
sustainable yield of the Lobster so that we do not over-utilise the
species.

The scientists must tell us the total allowable catch. The

law requires that if a states technical capability allows it to only

harvest 60% less than optimum yield, the law requires that state to
declare the surplus.

The problem arises though where states may

have submarines in other states coasts without anyone knowing what

they are doing and developed countries do sometimes dispute the
figures that are given but not so developed states like Kenya.
Continental shelf
They agreed to give the coastal states the continental shelves upto to
the slopes, this was not unanimously agreed.

They then allowed 60

extra nautical miles from the slopes and the states refused.

The

scientist were called in who said that the difference was in the earth
crust and the ocean crust just follow the sand sediments and you will
know when you are exiting the earth crust and in any case more than
350 nautical miles was disallowed.

Stay within the earth crust but

dont go beyond 350 nautical miles. The law of the sea is now the
continental shelf, the slope and the earths crust and not more than
350 nautical miles of the earths crust.
The deep sea bed area is the common heritage of mankind.

The

minerals like manganese nodules are potato crisps like nodules which
47

are rich in Nickel, copper, cobalt which can be mined and distributed
to mankind.
USA, France and Germany who had the technology to mine the sea
beds and have access to the minerals were stopped from exploiting
the minerals wanted automatic access to the sea bed had to agree to
keep the sea shelf for upto 350 nautical miles to be allowed automatic
access to the minerals in the common heritage sea bed area.
Two studies were commissioned on the economic consequences of
seabed mining, whether the seabed mining had the capacity to affect
the economies of states who depended on mining the minerals in their
own countries.

The two studies produced opposite results.

The

question of automatic access to seabed mining was therefore rejected

as the 3rd world created their poor multinational called enterprise.
This enterprise was supposed to be the operational arm of the seabed.
They created the Seabed authority to govern all the activities of
seabed mining.

Only the seabed authority could giving mining

authority to prospecting states. The Seabed Authority came up with

the banking system that allowed them to negotiate with the countries
with technology such that where they allowed mining, the area was to
be divided into two equal parts, one for the prospecting state and the
other for the Authority to negotiate and share with a company that
could share the proceeds with the Authority.
All these problems were surmounted and there was a new law of the
sea, all states agreed they wanted a new law of the sea and in the
spirit of compromise, consensus to deal with issues and agree came
out.
PUBLIC INTERNATIONAL LAW Lecture 7
August 04
48

6th

PROBLEM III
The chase of Ogulmama chased a foreign vessel to the High Seas
this is the concept of hot pursuit.

This exists in customary

international law and was frequently used by Coastal States in

relation to their territorial seas (which was an area of coastal
jurisdiction and a state could pursue a ship that invaded its waters.
Article 111 of Law of Sea establishes concept of the Law of the Sea.
States as follows the hot pursuit of a ship may be undertaken
Such pursuit must be commenced
Hot pursuit can now be applied mutatis when
mutandis in the EEC including safety zones. The pursuit may only be
commenced after a visual or auditory signal has been issued or
There is no indication that ogulmama sent any signal to stop the
foreign ship so there was no ship or auditory or visual signal.
Para 3 foreign vessels claims to be in the High Seas Ogulmama
claims the ship is in the EEC.
Ogulmama had no business to enter into the foreign ship if it was in
the High Seas. The ships fly the flags of the states of which they are
nationals. In the High seas they are only subjects to the jurisdiction of
the states whose flags they fly.

In the High Seas the ships are

assumed to be in the territory of the state whose flag it is flying and

cannot be subject to any other jurisdiction. Objective territory.

49

Since states are equal they are sovereign you cannot enter their
territory without their permission. In customary international law the
case most cited for hot pursuit concept is called IM Alone Case.
The case most cited for objective territoriality is the Lotus Case

Paragraph 4:
A

government

ship

entitled

to

protection

under

customary

international law means that it was a government ship that enjoyed

sovereign immunity.

What is sovereign immunity?

There are two

types
1.

Public Acts of a State: - Acta jure Imperil total immunity

2.

Private Acts of a state: - (Commercial Activities of a state) Acta

Jure Gestionis qualified immunity to begin with then finally no
immunity.

for years US, UK Germany France claimed that Act Jure Imperil are
immune from questions by anybody. Later on they began to change
the rules and to come up with the private acts of a state or
commercial activities of a state which are not immune they dont
have total immunity. And finally they have no immunity at all. There
were a lot of disagreements and the United Nations suggested that a
particular legal standard be made on jurisdiction of immunity.
The developed nations tried to codify the acts which would be act jure
gestionis for which no immunity would be granted. The study went on
for 15 years.

The conclusion and the model treaty which was

suggested has not been produced even today.

This is because it

became baffling to the states on why the developed nations were

50

passing on sovereign immunity Acts saying that the acts they enjoyed
before are now no longer going to be covered by immunity. The draft
articles produced never saw the light of day because the argument
was that if a state undertakes a commercial activity and competes
with individuals and they all sign a contract with the same supplier,
how is the problem where one refuses to pay and the other one is
compel to be resolved.
For an act to be act jure gestationis Nigeria in the Trendtex Case
argued that they had bought cement from Texas to build army
barracks, they argued that the nature of the contract. Which was for
government purposes,

if the activity involved was an act that any

ordinary person would do, then it could not be afforded immunity.

Properties that Foreign states owned abroad how were these to be
treated?

One cannot attach the property of a foreign state.

This

means that domestic courts cannot issue judgments against other

states and their property. This jurisdiction.
Sovereign immunity Act of state doctrine every state should respect the sovereignty and
political independence of other states. An act of one state taking place
within its own territory is not subject to be question by the court of
another state. not the same as saying that a state is immuned from
jurisdiction.
In trendtex Case it was sovereign immunity Nigeria was claiming as
the act happened in Texas.
For a court to conclusively establish that International Law forms part
of the law of the State Paquette Habana is the case most quoted
51

where the court confirmed that international law forms part of the law
of the state.
West Rand Central Mining Company V. The King cited for Her
Majestys judges confirming that International law forms part of
Englands state law.
Withdrawal of Ambassadors is meant to show displeasure.
Severing diplomatic relations

International Tribunal for the Law of the Sea,

Provisional Measures under Article 41 of the Statute of ICJ the court
shall have the power to indicate provisional measures if it considers
that circumstances so require. Any provisional measures which ought
to be taken to preserve the rights of both parties.
Article 290 If a dispute duly submitted to a court or tribunal which
considers that prima facie it has jurisdiction under the Article the
Court or tribunal may prescribe provisional measures which it
considers appropriate under circumstance to protect the rights of
either party.
The difference between Article 290 (1982) UN law of the Sea and the
article 41 OF THE Statute of the ICJ is that this one had power to
prescribe provisional measures and once prescribed they were meant
to be complied with and the former was meant to indicate.

52

If there is a conflict between states that have not both accepted either
the ICJ or the International Tribunal for the Law of the Sea, the case
should go for Arbitration.
A Compromis is the legal term referring to an agreement between
states that the parties have agreed to submit a certain dispute to an
agreed forum to which they have conferred jurisdiction for dispute
settlement.

PUBLIC INTERNATIONAL LAW Lecture 8

PROBLEM IV
Treaty
How are treaties negotiated.
Usually a problem is identified by states and meetings are held.
NOTE VERBAL (Verbal Note)
The

instruments

exchanged

between

communication between themselves.

1. Convention:
2. International Agreements
3. Accord
4. Protocol
5. Covenants
6. Charter

53

governments

to

initiate

7. Memorandum

Of

Understanding

an

instrument

with

connotations and legal consequences for non-compliance.

These are all means of recording agreements reached on negotiations.
There are no hard and fast rules to the distinctions of the above.
Because of this reason the international community got together to
decide how to negotiate all these instruments and they called it the
Law of the Treaties. All these terms are alright but they will stick to
the term Treaty.
Vienna Convention on the law of treaties: a treaty is an international
agreement

concluded

between

states

in

writing

governed

by

international law and may be in a single or more documents whatever

designation.
Preamble: a preamble is a part of a treaty in which the drafters
establish the philosophy, inspirations and reasons why they are
putting a particular matter in writing. The preamble is the rationale
behind the desire to have the treaty. Examples of a preamble is where
states after realising that something they are responsible for together
they get together to form a treaty.
inspiration of the subject matter.

The preamble will be the

They have to have an issue in

common. E.g. in problem IV sustainable use of Lolwe river.

Every treaty must have a preamble and a final clause. Final clause is
where the treaty says that it will be open for signature when the
treaty is concluded. The text of a treaty is deposited with a person
who keeps the text and circulates it to all the involved parties.
Usually it is head of an organisations e.g the Secretary General of
OAU etc.

54

The law of treaties is to the effect that a state negotiating a treaty can
sign within the specified period wherever it has been agreed upon to
be signed within a certain period.
The law of treaty says that the treaty in the final clause shall be
subject to ratification, accession or approval. These are key terms in
any treaty and together they are referred to as expression of consent
to be bound.
If a state takes part in the negotiation of the treaty and the treaty
opens for signature, unless the treaty itself permits the only way a
state can bind itself is by ratification, signature and then ratification.
Ratification is done by producing an instrument to express consent to
be bound.
Where the treaty was negotiated and never signed because open day
has expired, it means the state who did not sign on time can no longer
become party to it and can only become party to the treaty by
accession.
Signature alone does not mean that if a country signs it becomes
bound on that date of signing unless the treaty permits but this is
rare.
The final clause will also by agreement of the state negotiating decide
how many such instruments i.e. ratification, accession, approval are
needed for that treaty to enter into force. Entry into force of a treaty
i.e. the treaty shall enter into force on 30 th August 2004. Once it is
signed and ratified by a number of states even though it has not
reached the maximum number but once it receives 7 stated
instruments, it is ready. The treaty only becomes law when it achieves
55

the 7 instruments of a treaty it enters into force.

The states

themselves agree on how many instruments are required before the

treaty can be binding. For example the state can agree on how many
instruments are required to make the treaty binding.
Ratification, Signatory, Accession
Ratification - The state binds itself to the convention and agrees to
immediately start implementing steps to realise the rights contained
in the covenant;
Signatory The state shows willingness to be bound by the
convention, but the convention is not binding on it yet;
Accession

Instead of signing and then ratifying a convention, a

state becomes party to it by a single act.

A state can send its instruments of ratification indicating what it
chooses to be bound by.

The reservation must be indicated in the

face of the instrument and when the reservation has been formulated
and received by the depository it is circulated to all parties who have
agreed to be bound.

Please note that the treaty must be one that

allows reservations. There are however treaties that says they are not
subject to reservations and this means that all its clauses must be
accepted by everybody. The states that feel that they will not ratify a
treaty that does not permit reservations may decide to vote against it.
If a treaty is silent about reservations, can a state make reservations
anyway? Yes a state can make reservations but not to the article that
forms the fundamental purpose of the treaty. The reason why
The law of treaty will decide whether a reservation effectively nullifies
the membership of a state to that treaty. Most treaties opt for a no
reservation clause or silence.

56

CLEAN SLATE DOCTRINE (Tabular Rasa)

Where a state becomes independent and says it will no longer be
bound by the treaties ratified by the colonial masters and want to
start with a clean slate.
Concept of historical rights: Egypt insisting on historical rights vis-vis waters of the Nile.

PUBLIC INTERNATIONAL LAW Lecture 9

PROBLEM IV
The population dependent in riparian in each riparian state.
Equitable utilisation of a river
The idea of treaty law and conflict management in dealing with shared
natural resources like rivers.
PROBLEM V
There are 5 international relations problems

Mining Contract

Concession-

an agreement between a

sovereign state and a corporation is called a concession.

It is also

called a State Contract signed between a state and a natural or

juridical person.

57

Which law governs the contract?

Lex loci celebrationis

- the

law of the place where the contract is negotiated, the contract makes
the choice on whether to follow the law of the place where the
contract was negotiated or the law of the state that party to the
contract.
Any dispute arising from such contracts usually the contracts have
an arbitration clause.

Choice of laws and dispute settlement.

There must be Environmental Impact Assessment after mining is
completed e.g. to fill the holes already dug and to leave the area in a
habitable way. This is called an Agreement for Natural Resources
Development.

If a company wants to build a subsidiary foreign

company, it has to use local materials, if it is employing many people it

has to build schools for the children of the employees living there, if
they are prospecting for hard minerals or oil, the expert prospectus
must be accompanied by local experts of technology.
Jus cogens this is the peremptory norm, the norm that cannot be
delegated to it will prevent states from conspiring to attack another
state. Other states cannot also enter into an agreement in which they
produce counterfeit.
Can countries change their boundaries? In 1964 the OAU meeting in
Cairo passed a resolution in which they all agreed to accept
unchanged the inherited colonial boundaries at independence. This is
the principal adopted by African Countries relying on the principle of
not disturbing the boundaries and leaving them as they were the

58

principle is called

Uti Possidetis.

This principle is invoked

on any country that wants to change boundaries.

The principle of proportionality: The crossing of the border to another
country could be met by a comparable force proportionate to the
force that is incoming or in responding to an unarmed attack.
Refer to the case of Naulilaa Case:
Provisional Measure of Protection Interim Measure of protection
under International Law
interlocutory injunction:

and under domestic law is called an

this is where somebody wanting to stop

some activities from continuing while there is a dispute going on.

Article 41 of the Charter of the United Nations.

The court must

weigh the case before it and indicate if it considers the circumstances

required to preserve the rights of the party, but where the court feels
that the activities are going on that are not okay the court will
preserve the rights of the parties.
Article 62 of the Charter deals with question of an interest of a legal
nature.

Intervention is only allowed where the interest being

protected is of a legal nature.

The Temple Preah Vihear Case [1962] I.C.J. Reports (Thailad& Burma
Changing your position to the detriment of another person who relied
on your position before it was changed is estopped. The doctrine of
estoppel.
This country is estopped from denying since it acquiesced.

59

Walvis Bay was administered as part of Namibia although it was part

of the Orange Free State in South Africa. When South Africa realised
that Namibia was about to become independent they annexed Walvis
Bay. South Africa had not raised the question of Walvis Bay for the 10
years that Namibia was fighting for independence.

As the matter

came up and became a problem, the republic of South Africa declared

Walvis Bay annexed to its territory but Namibia re-annexed it back to
Namibia, it was held that Walvis Bay was part of Namibia and South
Africa could not all of a sudden change its position and declare that
Walvis Bay is not part of Namibia, South Africa was estopped from
claiming Walvis Bay.
Acquiescence and estoppels, one must show conduct, reliance upon
that conduct, detriment from that reliance.

60