Public International Law Notes

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Definition
J Dugard: International law is defined as a body of rules and principles which are
binding upon states in their relations with one another.
There is a problem with this definition as international law does not just regulate
states but also regulates the relations between private organisations.
Therefore international law (IL) can also be defined as:
A system of rules and principles which regulates the conduct of states and intergovernmental organisations in their relations with one another {UN}.

States are subjects of IL and as such have international legal personality.

Therefore they are capable of possessing international rights, duties and
obligations.

The UN, an international organisation, has been recognised by the ICJ as

possessing international legal personality.

Multinational corporations do not qualify as international subjects.

International Law is differentiated from International Relations in its focus.

International Law: Rules/Principles.

International Relations: Factors/Process.

Public International Law versus Private International Law

Private IL (conflict of laws)is concerned with the relations between individuals
who are governed by the laws of different states. The choice of the appropriate
law is thus the question in Private IL.
Public IL is concerned with the regulation of relations between states and other
entities which have recognised international status.

Levels of law
National/ Domestic/ Municipal

These terms mean the same thing -

Foreign

Laws at a national level of the state.

Another national law of a foreign
country. (Sometimes foreign law incorporates

provisions which can be used internationally eg.

A US national law which enables the suing of
another country for events which occurred
outside the US.)

Sub-Regional
Regional

SADC
Covers

Global/International

eg.African Charter on Human Rights

Laws which apply to all countries. UN;

certain

regions.

EU;

AU

Geneva Convention. (Note: Consent based

v Jus Cogen)

NATURE AND SYSTEM OF PUBLIC INTERNATIONAL LAW

International Law can further be divided into general rules and specific rules. This
difference is important.
General Rules
Apply to three or more states.

eg.Multilateral treaties.
Customary Law
Whether

binding:

Consent/

Particular Rules
Apply to 2 or a few states.
Eg. Bilateral treaties.
Created through treaties.

No

Consent/ Persistent Objector

Binds all states Universal
Jus Cogen

Cooperative process
In IL discussion, persuasion and justification are involved in arriving at a
particular law. It is also heavily dependent on diplomacy.
ILs role is to facilitate and control the conduct of the international community
through various means. Eg. Sanctions.
UN Charter:
The UN Charter recognises several aspects of IL.
1. The sovereign equality of states states are equal despite their size or
population numbers.
2. Non-intervention in the internal relations of countries.
3. Non-use of violence/force.
4. Peaceful settlement of disputes.
5. Respect for human rights.
6. Self-determination of peoples (external/internal relations)

International law and regional law

International Law
All states can sign/ratify the law.

Regional Law
Only countries in that particular region

can sign in these treaties.

Differences between international law and municipal law

See table on SAKAI Very popular exam question Is IL really law?
IL definition: International law is defined as a body of rules and principles which
are binding upon states in their relations with one another.
Municipal law definition: A governing body within geographical boundaries
regulates the relations of that governing body with its citizens or another
governing body eg. Extradition treaties between two countries.
Decentralised versus centralised

IL is not a centralized body of law; it has no central origin and it has no

central collation of recognised laws. IL has no parliament or legislature.

Most systems of domestic law involve a clear delineation of law sources

and their various binding powers; IL does not have this.

The subjects of IL, being the states, are the principal actors and bear
rights, obligations and legal personality.

In municipal law, individuals are the subjects of rights, obligations and

have legal personality.

Horizontal versus vertical

In IL there is horizontal application of law as all states are equal; there is no
vertical authority maker. States are therefore both the lawmaker and subject of
IL.
In municipal law the application of law is largely vertical with individuals being
the subject of the law.
Law making bodies
There is no central legislative body in international law with the power to enact
rules binding on all states. The General Assembly of the UN can only make
recommendations to its members; these recommendations are not binding.
However the Security Council, under article 25 of the UN Charter, can take
decisions which are binding on all members, provided the decision relates to a
situation which threatens international peace and security.
The rules of IL are found in international treaties and international custom. These
rules are not imposed by a law making body but are created via consent of
states. As such it is a horizontal system in which the legal subject is also the
lawmaker.

In municipal law there is a central law making body called the legislature or
parliament, which imposes its laws vertically.
Executive Authority
In IL there is no direct equivalent of executive enforcement such as through a
police force. The execution of laws is highly dependent on a co-operative process
and/or threats of sanctions/ negative diplomacy. The UN is only an indirect
executive equivalent, as it lacks the power to direct states to comply with the law
and it lacks a permanent police force to enforce digressers of the law.
In municipal law there is a centralized executive body which enforces the laws
through the police force.
Adjudicative bodies
There are some international courts and as such IL does have a judicial system
capable of settling disputes between states. However the jurisdiction of the
courts are severely limited in that states must consent to the jurisdiction of the
court.
1. International Court of Justice (ICJ)(old: PCIJ)

Only states have legal standing to bring a case to the ICJ.

A case cannot be brought against an individual; it can only be

brought against another state. Further the ICJ only deals with
specific fields of law (eg. Self-determination), therefore it does not
hear humanitarian crimes.

This court also gives advisory opinions on IL; however these remain
only recommendations and are not binding upon states.

2. International Criminal Court (ICC).

Only states have legal standing to bring a case to the ICC.

The Security Council can refer cases to the ICC.

However the case is brought against an individual.

An individual cannot approach the ICC by themselves.

3. Regional: African Court of Human and Peoples Rights (ACHPR)

States have legal standing to bring cases; individuals and NGOs

require the consent of the relevant government to allow you to
bring a case before the court.

PIL has no compulsory jurisdiction; countries must consent to the jurisdiction of

the International Courts. For example: A country must consent to the Rome
Statute to be party to that consent in order to be able to bring a case before the
ICC. Non-signatory countries cannot approach the ICC.
Therefore consent of states to the jurisdiction of a court is required. In Africa
there is the African Court of Justice (not functioning) and the African Court of
Human and Peoples Rights (ACHPR).
In IL there is no systematic enforcement of compliance; the courts cannot call
upon an executive authority to enforce their rulings.
Quasi-Judicial Bodies:
The African Commission for Human and Peoples Rights can only make
recommendations; these reports are only persuasive and are not binding.
Other enforcement mechanisms / Sanctions
There is no unified system/structure of sanctions. However there are other ways
to enforce laws such as exclusion from membership in unions. Eg. Libya was
excluded from the Human Rights Council and there was a ban on Libyan
airspace.
The UN can send peacekeeping forces, impose economic sanctions, arms trade
sanctions, cultural/social sanctions, or simply refuse to recognise a state.
Collective Responsibility
Any violation of the state of an IL falls onto all the citizens of that state. Domestic
law does not follow this approach; individuals are only held responsible for their
actions.

THE QUESTION OF WHETHER INTERNATIONAL LAW IS

REALLY LAW?
Legal analysts see the existence of a law-making body, an executive or lawenforcement body, and a compulsory system of courts as essential features of
any legal system. IL does not have developed institutions of these kinds, but it
does have the rudimentary features of a legal system and in practice, much of its
laws are universally acknowledged to exist, even if in practice the laws may be
breached.
IL differs from municipal law in that it has no central legislature or executive
authority, and the ICJ, unlike domestic courts, lack compulsory jurisdiction over
its subjects.

Pollock has formulated a test to consider whether IL is really law, considering

that it deviates substantially from the normal notions and expectations of what a
legal system should comprise of. The test is:
1. Is there a political economy?
2. Is there a recognition by its members of settled rules binding
upon them?
The answer to both these questions is Yes and therefore Pollock concludes that
IL is really law, though law of a different and admittedly flawed kind.
There is a political economy comprised of the community of modern states.
Although there are serious political, economic and cultural divisions within
this community, it is no less divided than most heterogeneous societies.
There is a body of rules and principles that comprise the international legal
order.
The members of the community recognise that these rules are binding upon
them.
IL is recognised and observed daily in trade, air and sea traffic, and
diplomatic relations.
Its binding quality is recognised in municipal courts.
States recognise and comply with IL for a variety of reasons:

An interest, either selfish or altruistic;

Maintenance of peace and good order;

An acceptance of the legitimacy of IL;

Reputation both at home and abroad;

Anticipated reciprocal treatment;

Fear of economic, political, cultural and sports isolation.

By and large states comply with IL for reasons unrelated to threat of

sanctions; thus IL is enforced because it is already binding.
Austin v Hart debate:
No effective enforcement mechanisms. Does a system of law depend on
enforcement? Cf. Domestic law is still law despite the disregard people have for
it. One cannot look at the fact that its not enforced and rule it out as not being
law.
Authority: Look at the source of the authority the source of the law whether
people accept IL as law.
IL flawed but functional. Can enforce IL in certain circumstances ie. Libya. IL is
relevant and legal principles can be used.

No prevention or control mechanisms for IL to prevent atrocities:

o

Must distinguish between the effectiveness of the law versus

whether there is a recognised system of law. These terms are
different.

Domestic example: Atrocities still occur despite a recognised

legal system.

Coincidence of conduct: If a state complies with IL it is by

coincidence, in their own self-interest.(Realist movement).
o

Even if a country acts in self-interest, they still recognise the

legitimacy of an IL rule, and try to justify their actions in
terms of the IL.

Compliance does not make IL.

IL is far removed from individuals as certain procedures are required

to access international tribunals. Ie. UN offices are based in foreign
countries.
o

ICC - individuals cant bring actions.

ICJ Only states have standing.

ACHPR Have to exhaust internal remedies in your country

before bringing an action to this court.

Domestication of a treaty if domesticised an individual can

directly use that Int.Law as it is now a national law.

Individuals can access IL through government departments.

Even though it may be difficult for some individuals to access

IL it does not degrade IL into a non-system.

Conclude: IL focuses on state interaction, regulation and the way

that states treat their citizens. One cannot compare domestic
systems of law to IL, as certain features will not have a direct
correlation.

IL is not a bunch of norms from which states can choose from at

their whim it is a system of law.

Must Discuss Both Sides of the Debate in the Exam: Suspicions & Support of IL

Sources of Public International

Law
INTRODUCTION TO THE SOURCES
Statute of the International Court of Justice
Article 38
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.

Sources are where the rules and principles of IL are found.

Definition of sources: The process by which rules of IL emerge.

International Conventions General or Particular

International conventions are treaties and other agreements by any other

name.

General conventions are treaties in which several states are party to ie.
Universal

Particular conventions are treaties in which two or a few states are party
to.

These are conventions which establish rules which states have expressly
consented to and are thereby bound.

Hierarchy of sources NB Exams

Article 38 of the Statute of the ICJ does not exhaustively define the sources of IL;
there are other forms of IL, such as UN resolutions (soft law), which do not fall
within these definitions.

Sections 1(a) (c) are considered law creating provisions.

Section 1(d) is considered to be a law determining provision.

First Theory of Hierarchy

There is no hierarchy between the primary sources of IL, these being ss1(a)-(c)
but judicial decisions and academic opinion as contained in s1(d) are subsidiary
sources.
Primary Sources:
.International conventions
International custom
General principles of law

Subsidiary Sources
Judicial decisions
Academic opinion

Second Theory of Hierarchy

Within the primary sources, international conventions carry more weight as they
are codified expressions of the will of the states. Therefore treaties should be
considered before international custom and general principles of law. However
subsidiary sources remain subsidiary.
Primary Sources:
1. International conventions
2. International custom
3. General principles of law

Subsidiary Sources
Judicial decisions
Academic opinion

Third Theory of Hierarchy

Sources should be weighted as they were written in Art.38. Therefore
international conventions should be considered before international custom, and
the latter before general principles of law. Finally judicial decisions should be
considered before academic opinion.
Primary Sources:
1. International conventions
2. International custom
3. General principles of law

Subsidiary Sources
4. Judicial decisions
5. Academic opinion

Conflict between sources and norms

A source is defined as above, however in IL there are also norms.

Norms are universal principles of IL such as Jus Cogens.

Jus Cogens are peremptory norms which no country can deviate

from.

Jus Cogens are peremptory norms which no country can deviate

from.
What happens when there is conflict of sources and norms?

Norms, such as jus cogens, must be considered before sources; therefore

norms are always at the top of the hierarchy of sources of IL.

Norms: Jus Cogens

Primary Sources:
Subsidiary Sources
International conventions
Judicial decisions
International custom
Academic opinion
General principles of law
Source hierarchy questions tend to arise between states in a conflict.
Example: Whether a treaty should be considered before a jus cogen. In this
situation the jus cogen must be considered before the treaty according to Article
53 of the Vienna Convention on the Law of Treaties, which states:
Article 53:Treaties conflicting with a peremptory norm of general
international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general
international law. For the purposes of the present Convention, a peremptory
norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.

Article 64 VCLT: Emergence of a new peremptory norm of general

international law (jus cogens)
If a new peremptory norm of general international law emerges, any existing
treaty which is in
conflict with that norm becomes void and terminates.
Customary International Law Jus Cogen

Principles of Conflicts between Norms & Principles

1. Lex specialis:
o

Where there is a conflict between a special norm and a general

norm, the specific norm takes precedent. A type of special norm is a
jus cogen.
Special Norms take precedent over General Norms

2. Lex posterior:
o

A recent law takes precedence over an older law IL knows no

principle of stare decisis.

A Recent Law takes precedence over an Older Law No Stare Decisis

Conflicting Obligations
Obligations arise in treaties. Conflicts may arise between obligations contained in
different treaties.
Example:
A conflict arises between an obligation arising from a UN treaty and an AU treaty.
Article 103: UN Charter
In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement,their obligations under the present Charter shall prevail
Objectives of Sources: Identify sources, both Article 38(1) and non Article 38(1)
sources; argue theories of hierarchy and explain different types of treaties.

TREATIES / CONVENTIONS
General definition
Article 2(a) VCLT:
treaty means an international agreement concluded between States in written
form and governed
by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.

This definition of a treaty is a bit outdated; treaties may now be concluded

between

states

and

international

organisations,

between

two

different

international organisations and traditionally between states.

Oral agreements do not qualify as treaties, but they may create legal
obligations which are binding.

Treaties are important as they are more certain and predictable than
custom. They are a primary means of norm creation and their content is
not inferred or disputed.

Types of treaties
1. Legislative:
o

These require a large number of states.

Codify customary law.

2. Constitutive/Constitutional:
o

These create an organisation eg. Rome Statute/ UN Charter.

3. Contractual:
o

A treaty concluded between two or more states.

Treaty-making
States make treaties; there is a process which is followed:
1. Consider national law to determine who has the power to make treaties
Section 231 of the Constitution:
(1) The negotiating and signing of all international agreements is the
responsibility of the national executive.
2. Negotiations take place between state representatives.
3. Drafting of the treaty.
4. Adoption of the treaty.
a. Signature,
b. Ratification, or;
c. Accession.
Signature Ratification
Formal agreements, particularly multi-lateral agreements, normally require
ratification in addition to signature. Where the treaty does not provide explicitly
for ratification, this requirement must be inferred from the surrounding
circumstances. A state is not bound by a treaty which it has signed but not
ratified, however it is obliged to refrain from act s which would defeat the object

and purpose of such a treaty until it has made clear its intention not to be bound
by the treaty.

Article 18 VCLT:Obligation not to defeat the object and purpose of a

treaty prior to its entry into force:
A State is obliged to refrain from acts which would defeat the object and purpose
of a treaty
when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into
force of the treaty
and provided that such entry into force is not unduly delayed.
Signature:
A country agrees, via signature to the treaty, to uphold the treaty and to not act
contrary to the treaty.
Ratification:
After a treaty is signed and concluded, states may agree to be bound by the
treaty by ratifying it. This provides a state the opportunity to change its decision,
or to allow the state time to change its national laws to avoid a conflict with the
treaty.
Accession:
A state later becomes a party to a treaty in whose negotiation it did not
participate, and which it did not sign, by means of accession, provided that the
original parties accept that such states may accede to the treaty.
Article 14 VCLT
Non-State Parties:
(when are they bound by a treaty?)
Reservations
Ratification and Accessions are subject to Reservations & Declarations.
Article 2(1)(d) VCLT:

reservation means a unilateral statement, however phrased or named, made

by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to
modify the legal effect of certain provisions of the treaty in their application to
that State.

Reservations modify a particular provision in a treaty, and must be entered

before signature.

The reservation cannot defeat the purpose and object of the treaty;
otherwise the reservation is void.[Article 19 VCLT]

Article 19(c) VCLT:

A State may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(c) the reservation is incompatible with the object and purpose of the treaty.

There are no procedural requirements for other states to accept or reject a

reservation of another state. [Article 20 VCLT]

Article 20(1) VCLT:

1. A reservation expressly authorized by a treaty does not require any
subsequent acceptance by
the other contracting States unless the treaty so provides.

Reservations may change the obligations between countries. Example:

o

Countries A, B & C enter into a treaty. Country A enters a

reservation on provision 2. Country B accepts the reservation while
Country C rejects the reservation. As Country B accepted the
reservation, it cannot under the treaty object to Country As laws
regarding that reservation. However the relations between Country
A and Country C differ in that that particular provision does not
apply between the two states.

A reservation modifies the provisions of the treaty to the extent of the

reservation between the reserving state and those states that accept the
reservation.

A state that objects to the reservation, but without opposing the entry into
force of the treaty between itself and the reserving state the provisions to

which the reservation relates do not apply as between the two states to
the extent of the reservation [Article 21 VCLT]
General:

The Rome Statute prohibits reservations.

Some other statutes and conventions permit and/or modify the

entry of reservations.

States are given a 12 month grace period to enter a reservation; a failure

to enter a reservation constitutes an presumption of acceptance.[Article
20(5) VCLT]
Generally treaties are not binding on non-treaty states.

Cf. Article 2(6) UN Charter: The Organization shall ensure that states
which are not Members of the United Nations act in accordance with these
Principles so far as may be necessary for the maintenance of international
peace and security.

Observance of Treaties
1. Principle of Free Consent Cannot force states into treaties.
2. Pacta Sunt Servanda Agreements are binding and must be complied
with. [Article 26 VCLT]
Article 26 VCLT:
Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.

3. A state cannot invoke a domestic law as justification for the failure to

comply with a treaty.[Article 27 VCLT]
Article 27 VCLT:
A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty.

4. Treaties are binding within the territory of the country; however this
principle does not bar the extra-territorial binding power of obligations.
[Article 29 VCLT]
Article 29 VCLT
Unless a different intention appears from the treaty or is otherwise established,
a treaty is binding

upon each party in respect of its entire territory.

Interpretation of Treaties
Articles 31-33 VCLT
1. Textual and ordinary meaning.
2. Object and purpose (teleological approach)
3. Intention of the parties (look to the text itself, preparatory works
prparatoires)

Application of Treaties
Invalidity of Treaties

If force was used to sign a treaty, such treaty is invalid.[Article 52 VCLT]

This is also in breach of a jus cogen norm.

Article 52 VCLT
A treaty is void if its conclusion has been procured by the threat or use of force
in violation of the
principles of international law embodied in the Charter of the United Nations.

Termination of Treaties

Treaties continue indefinitely unless there is an express contrary provision.

Material breach of the treaty or a fundamental change in circumstances

terminate a treaty.
o

Example: Simonstown Agreement of 1955.

Principle of Continuity: Treaties remain valid even when a change in

government is effected.
o

However when the state experiences a change in legal personality

(eg. South v North Sudan) there are two approaches to treaties:

Universal Succession: The new state succeeds to all

treaties.

Clean Slate: The State concludes new treaties, rejects or

accedes to some of the prior treaties.

CUSTOM / CUSTOMARY INTERNATIONAL LAW

General definition
Customary international law is an international custom which evidences a
general practice accepted by states as law.
Article 38(1)(b) ICJ Statute
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
....
b. international custom, as evidence of a general practice accepted as law;

Conduct Element: Settled Practice or USUS

Proof of a customary rule two basic elements
Settled practice (Usus)

Opinio Juris

Two Elements Confirmed in the [Continental Shelf Case]

Both elements must be met [Nicaragua Case]
Where is Customary Law Found:
Diplomatic correspondence
Policy statements delivered by states
Press releases
Opinions of official legal advisors
Official manuals on legal questions
Executive decisions and practices
Comments made by government officials on drafts produced by the
ILC on various legal subjects
State legislation
International and national judicial decisions
Treaties and other international instruments
A pattern of treaties in the same form
Practice of international organs
UN resolutions
When would a practice qualify as custom?
1. Duration: Time frame of practice
a) IL is not clear on the time frame needed for a customary law to form.
b) Time frames are not rigid and depend on the circumstances of each case.

i.

Eg. Space customary law formed very quickly.

c) ICJ confirmed that even a short period of time would not bar customary
law [North Sea Continental Shelf Case]
2. Consistency: Constant & Uniform Usage
a) There must be no uncertainty in terms of which situations the custom
applies and there must be no discrepancy between cases. [Asylum
Case]
Asylum Case:
Court held that the law regarding the granting of political asylum to political
refugees in embassies was: too uncertain in that the granting of asylum was
subject to fluctuation in official views, the conflicting succession of conventions
on asylum, ratified and rejected by some states, and overall the practice was one
of political expediency.
b) There must be sufficient uniformity :
i.

General or widespread acceptance is sufficient; universal acceptance

is not required. [Anglo-Northern Sea Fisheries Case]

ii.

There must be both extensive and virtually uniform practice

1.

[Northern Sea Continental Shelf Case {NSCSC}]

a) Case Held: Is it a primary or secondary obligation of a
treaty? - If a secondary obligation, the practice is not uniform;
Are there any exceptions to the principle? - There are
exceptions therefore the practice is not uniform.

iii. [Nicaragua Case]:

1. Held: A practice does not have to be in rigorous conformity; there
would be instances of inconsistency but that inconsistency does
not deny a rule of IL.
iv. [S v Petane]:
1. Wide ratification of a treaty does not automatically make settled
practice.
Persistent Objectors:
Cases: [S v Petane; Anglo-Northern Sea Fisheries Case]
The persistent objector principle provides that if a state has objected
persistently to a custom, that state is not bound by the customary rule.
The dissent does not negate the legality of the rule for other states. It simply
does not bind the objecting state.
Thus the legal effect of persistent objection is that the state will not be
legally bound by the customary rule.

Immunity from the rule will last only for the period for which the State
persistently objects.

If many states object persistently to the rule, it may be that a customary

rule has not formed.

The objection must be public.

Mental Element: Opinio Juris

One must go back to state practice to prove opinio juris; so the method is to prove the first element objectively
(state practice), then double back to state practice to find the subjective element (opinio juris)

Definition:
Opinio juris is the sense by the state of being under a legal obligation to
comply with an international law.
Art 38(1)(b) ICJ Statute: accepted as law
How does one prove opinio juris?

Statements of government.

Resolutions of the UN, EU and AU.

[Gulf Maritime]:
Unilateral conduct by a state can be interpreted as tacit recognition of an
international customary rule.
If the state fails to object to the rule, tacit acceptance can be inferred.
[NSCSC]:
Hesitation over a rule can lead to an inference of a lack of consent to be
legally bound to the custom.
States must act as if they are aware of an obligation imposed by international
law.
In this case state practice showed that the states did not feel under a legal
obligation to apply the rule.
Soft Law
Soft law are general standards adopted at resolutions and conferences (eg. UN
GA Resolutions or the Helsinki Final Act); these are simply guidelines for states
and are not binding.

However soft law can develop into customary law, as it is useful in

determining state practice and opinion juris.

UN Resolutions
[Nicaragua]:

One can derive opinio juris from the circumstances that surround the adoption of
a UN GA Resolution, such as the attitude of the states to the resolution and the
effect of consent to the text of such resolutions.

[Petane]:

Resolutions can constitute opinio juris, but that mental element must be
expressed through usus in order to create customary law.

1. What to look for in a resolution - [Legality of the Threat or Use of

Nuclear Weapons ICJ 1996]
a) Need to look at the contents of the resolution and the conditions of the
adoption of the resolution, such as abstentations and negative votes, in
order to establish state practice or opinio juris.
Legality of the Threat or Use of Nuclear Weapons ICJ 1996
Court held that a series of resolutions may constitute opinio juris for the
establishment of a new customary rule, however the totality of resolutions must
be considered. The court found in this case that though there was deep concern
on the use of nuclear weapons, the opinio juris could not be established to show
that states thought the use of such weapons was illegal.
Regional or Local custom
Local custom:
This is the positive acceptance of all states involved in that custom. Ie. A & B
both accept that Rule Z is a customary rule. [Asylum Case]
[Right of Passage over Indian Territory Case]:
Need to look for a mutual exchange and acceptance of rights and duties
between the states.
Right Duty.
[Nkondo v Minister of Police]:
The court found that as there were only four instances of permitting transit
without a permit and immunity from arrest; such circumstances did not
establish a local custom between SA and Lesotho.
Therefore there was no clarity on the custom, as there was no constant and
uniform usage.
Regional Custom:
This is custom specific to a region, such as Latin America [Nicaragua].
To prove local or regional custom, use the two elements of customary law.

GENERAL

PRINCIPLES

OF

LAW

RECOGNISED

BY

CIVILIZED NATIONS
Basics on general principles
These are principles which emanate from various legal systems.

The ICJ looks to major legal systems and treaties to determine

commonality of features.

General principles are not binding in themselves but have to be accepted by

the international community as legal norms.
Where there are gaps in customary or treaty law, general principles fill these
gaps to find an answer.

Examples: Estoppel, Res judicata, humanity, Trust systems etc.

[International Status of South West Africa Case]

JUDICIAL PRECENDENT AND WRITINGS OF RESPECTED

ACADEMICS
Judicial decisions / doctrine of precedence
Judicial decisions set precedents and are therefore important sources of law.
Parties may only rely on judicial decisions subject to Art 59 ICJ Statute:

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

There is no doctrine of stare decisis. But in practice the ICJ will refer back to
its earlier decisions.

Writings
Academic authors of high calibre: eg. J Dugard.

NON-ART 38 SOURCES
Resolutions

and

declarations

(already

discussed

under

custom)
Unilateral acts of States:
Sometimes unilateral acts of states, particularly in the form of statements made
by government officials, may create international obligations.
1. [Legal Status of Eastern Greenland]:

a. The Norwegian Minister of Foreign Affairs acknowledged Denmarks

claim to the land in unofficial talks.
b. Therefore Denmark could claim the land based on the unilateral act
of Norway.
2. [Nuclear Tests]:
a. The French President made consistent public statements about the
nuclear tests.
b. These

consistent

public

statements

created

binding

legal

obligations through the unilateral act of the French President.

Requirements of Unilateral Acts
1.

The act must be public.

2.

There must be an intention to be legally bound by the act.

3.

Notoriety - the act must be well known.

Contributions

of

the

International

Law

Commission

(Codification)
The ILC gives views on treaties and custom.
It conducts studies and drafts legal opinion on state practice.
Drafts reports, conventions, codes, guidelines, restatements of the law, draft
treaties and special reports.
Codifies

international

law

and

promotes

the

progressive

development of the law.

Qualifies as law either in its own right, or as evidence of custom, or the

expression of highly qualified publicists.

JUS COGENS NORMS / OBLIGATIONS ERGA OMNES

Jus cogens

Substantive norms.

Jus cogens are substantive rules of IL which have a higher status than
custom.
Jus cogens form over time and stem from treaties and custom.
They eventually attain the status of peremptory norms applicable to all
states.
No derogation from these norms is permitted.

Definition:
A jus cogen is peremptory norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international
law having the same character
[Art 53 & 64 VCLT]
Origin
Article 53 VCLT: Treaties conflicting with a peremptory norm of general
international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character.
Article 64 VCLT:Emergence of a new peremptory norm of general international
law (jus cogens)
If a new peremptory norm of general international law emerges, any existing
treaty which is in conflict with that norm becomes void and terminates.
Identification approach
The

ILC

adopted

draft

articles

on

the

responsibility

of

states

for

internationally wrongful acts. These drafts show how jus cogens have been
codified.
However there is much uncertainty as to which norms are jus cogens.
The ICJ in 2003 laid down requirements to identify jus cogens:
Requirements:
1.

The law must be a general rule of international law, and;

2.

It must be accepted as a peremptory norm.

Examples

Prohibition on racial discrimination and genocide [Democratic Republic of

Congo v Rwanda]

Prohibition of the denial to self-determination.

Prohibition on aggression.

Additional Notes:

In accordance with article 53 of the 1969 Vienna Convention, a treaty

which conflicts with a peremptory norm of general international law is
void. Under article 64, an earlier treaty which conflicts with a new
peremptory norm becomes void and terminates.

This is the basis of an implied condition of continued compatibility

with international law.

A State taking countermeasures may not derogate from such a norm:

for example, a genocide cannot justify a counter-genocide. The plea of
necessity likewise cannot excuse the breach of a peremptory norm.

Those peremptory norms that are clearly accepted and recognized

include the prohibitions of aggression, genocide, slavery, racial
discrimination, crimes against humanity and torture, and the right to
self-determination.

One State cannot dispense another from the obligation to comply with
a peremptory norm, e.g. in relation to genocide or torture, whether by
treaty or otherwise.

Articles 53 and 64 of the 1969 Vienna Convention. These provisions

recognize the existence of substantive norms of a fundamental
character, such that no derogation from them is permitted even by
treaty.

Treaties which would violate the article due to conflict with a

peremptory norm of general international law, or a rule of jus cogens:
(a) a treaty contemplating an unlawful use of force contrary to the
principles of the Charter, (b) a treaty contemplating the performance
of any other act criminal under international law, and (c) a treaty
contemplating or conniving at the commission of such acts, such as
trade in slaves, piracy or genocide, in the suppression of which every
State is called upon to co-operate treaties violating human rights,
the equality of States or the principle of self-determination.

Jus Cogens are those substantive rules of conduct that prohibit what
has come to be seen as intolerable because of the threat it presents to
the survival of States and their peoples and the most basic human
values.

Jus Cogens were first recognised by the ICJ in DRC v Rwanda.

Norms of jus cogens are a blend of principle and policy. On the one
hand, they affirm the high principles of international law, which
recognize the most important rights of the international order such
as the right to be free from aggression, genocide, torture and slavery
and the right to self-determination; while, on the other hand, they give
legal form to the most fundamental policies or goals of the
international community the prohibitions on aggression, genocide,
torture and slavery and the advancement of self-determination. This
explains why they enjoy a hierarchical superiority to other norms in the
international legal order.

Relationship between Erga Omnes & Jus Cogens

The examples which ICJ has given of obligations towards the

international community as a whole all concern obligations which, it is
generally

accepted,

arise

under

peremptory

norms

of

general

international law.

But there is at least a difference in emphasis. While peremptory norms

of general international law focus on the scope and priority to be given
to a certain number of fundamental obligations, the focus of
obligations to the international community as a whole is essentially on
the legal interest of all States in compliancei.e. in terms of the
present articles, in being entitled to invoke the responsibility of
any State in breach. Consistently with the difference in their focus, it
is appropriate to reflect the consequences of the two concepts in two
distinct ways. First, serious breaches of obligations arising under
peremptory norms of general international law can attract additional
consequences, not only for the responsible State but for all other
States. Secondly, all States are entitled to invoke responsibility for
breaches of obligations to the international community as a whole.

Obligation Erga Omnes

Procedural norms.

Definition;
Erga omnes are the obligations owed by the state to the international
community and in which other states have an interest in upholding. [Barcelona
Traction Case]

Thus any country can bring a case against another state for a failure to
comply with its obligations.

Where they are derived from

Erga omnes are related to jus cogens, in that an obligation erga omnes is
derived from a jus cogen.

Jus Cogen
Prohibition on Torture

Erga Omnes
Obligation not to torture

Standing to bring claims in respect of violations of these norms

All states, including non-injured states, can bring a claim against the violating
state; a state need not prove a direct national interest in the violation.
Exam: Identify Sources - Both Art 38 and non Art38; Argue hierarchy;
explain the different kinds of treaties.

The

Relationship

Between

National And International Law

Explain the legal effects of each point in an exam

Key Points

There is no international regulation as to how national systems are to give

effect to international rules
IL leaves each State complete freedom (with the discretion) as to how it
fulfills its obligations, which results in total lack of uniformity
Some treaties, in addition to laying out other obligations, impose an
obligation on their signatories to enact implementing legislation so as to give
effect to international norms at the municipal level; but does not specify how
Thus, two main approaches or theories have been advanced in relation to
understanding the interplay between IL & national law.
Monism

Dualism

Maintains that IL & national law be

seen as a expression of a single
conception of law

Maintains that IL & municipal law are

completely different systems of law

IL becomes part of national law upon

ratification
National courts are required to apply IL
rules directly
They do not need any act of adoption
by the court or transformation or
incorporation by the legislature or
executive

Differs in terms of subjects, sources &

substance
IL cannot per se become part of
national law
IL cannot be applied directly
IL must be adopted by the courts or
transformed to local law through
legislation

Notes:
Transformation - amendment to existing laws or the adoption of new
domestic legislation in line with the treaty
Incorporation - the comprehensive inclusion of the treaty in national law
Harmonisation theory
Qualifies the monist position
Where there is conflict between IL & national law, State legislation must prevail
(contrast this with s233 of SA Constitution)
S233 of SA Constitution: When a conflict arises between IL and National law in
interpreting legislation, the courts must use an interpretation in favour of IL. Cf.

In variance with harmonisation theory - National legislation would prevail in this

situation.

Monism
International law and domestic law are not different; they must be
construed as the same conception of law.
Domestic courts are required to implement international law directly
without the need of any act of adoption by the courts, or any
transformation by the legislature.
Thus IL is incorporated directly into domestic law with any act of
incorporation by the State.
Monists have conceded that the whole body of IL cannot be directly
applied by the domestic courts.

Dualism

IL and domestic law are two different systems of law; therefore IL must be
adopted by the courts or transformed into local law by the legislature.

Harmonisation

In cases of conflict between international law and domestic law, the judge
must apply his countrys own jurisdictional rules.

Therefore customary IL must be applied directly as part of the common law,

but that conflicting statutory rules and acts of state may prevail over IL.

Position Today:

States can take an approach or combine the different theories.

However IL cannot be totally separated from national law as IL does have an

impact on national law.

States cannot use a domestic law as an excuse for a violation of a jus cogen
or erga omnes.

INTERNATIONAL

LAW

IN

THE

SOUTH

AFRICAN

CONSTITUTIONAL ORDER
KEY CONSTITUTIONAL PROVISIONS
37 (4). States of emergency
Any legislation enacted in consequence of a declaration of a state of emergency
may derogate from the Bill of Rights only to the extent that
...
(b) the legislation
(i) is consistent with the Republics obligations under international law applicable
to states of emergency
39. Interpretation of Bill of Rights
When interpreting the Bill of Rights, a court, tribunal or forum... must consider
international law
231. International agreements
1. The negotiating and signing of all international agreements is the
responsibility of the national executive.
2. An international agreement binds the Republic only after it has been
approved by resolution in both the National Assembly and the National
Council of Provinces, unless it is an agreement referred to in subsection
(3).
3. An international agreement of a technical, administrative or executive
nature, or an agreement which does not require either ratification or
accession, entered into by the national executive, binds the Republic
without approval by the National Assembly and the National Council of
Provinces, but must be tabled in the Assembly and the Council within a
reasonable time.
4. Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing provision of
an agreement that has been approved by Parliament is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament.
5. The Republic is bound by international agreements which were binding on

the Republic when this Constitution took effect.

232. Customary international law
Customary international law is law in the Republic unless it is inconsistent with
the Constitution or an Act of Parliament.
233. Application of international law
When interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law over any
alternative interpretation that is inconsistent with international law.

Customary international law

Sections 232 and 233 of the Constitution

Section 232 follows a monist approach - IL is directly incorporated into

domestic law, unless it is inconsistent with the Constitution or an Act of
Parliament.

S233 of SA Constitution: When a conflict arises between IL and National law

in interpreting legislation, the courts must use an interpretation in favour of
IL.

This is in variance with the harmonisation theory - National legislation

would prevail in this situation.

Proof of Customary International Law / Is There a Stricter

Test in Domestic Law than International Law for Proving
Customary International Law?
See print-out.

Use of the Word Binding in the Interim Constitution

Section 231(4) contained the word binding in the provision; a question

revolved around what this meant.

It was interpreted to mean that customary IL would be binding domestically

whether or not consent by the state was given, unless the state was a
persistent objector to the custom.

Treaties
Prior 1994:

The law followed a pure dualistic approach - it was the responsibility of the
national executive to sign treaties.

Interim Constitution:

The Constitution referred specifically to the President. Therefore it was the

sole responsibility of the President to sign treaties.

This was a non-collaborative approach.

1996 Constitution:

Follows a combination of the monist and dualist approaches.

Sections now refer to the National Executive - therefore it is a reversion back

to the collaborative approach; the President does not have the sole
responsibility to enter into treaties. [Quagliani]

International Agreements versus International Treaties

International agreements refers to all formal or legally binding agreements

such as treaties.

VCLT 2(1):
treaty means an international agreement concluded between States in written
form and governed
by international law, whether embodied in a single instrument or in two or more
related instruments.

Informal agreements do not form part of international agreements. [Harksen

v President RSA]

The three steps and legal effects (Glenister)

Must distinguish between two different types of treaties:
Treaties requiring only Signature

Treaties requiring both Signature &

These treaties become binding upon

Ratification/Accession
These treaties must be both signed and

mere signature.

ratified to become binding.

If the treaty is just signed, it is not
binding but creates an obligation on
the states not to act in a way which
defeats the purpose and objects of the
treaty until it is ratified.

Must be able to explain the legal effects at each stage of the process!!!!
1. Negotiation: s231(1)
Section 231(1): The negotiating and signing of all international agreements is
the responsibility of the national executive.

Legal Effect

Does not automatically bind the republic, unless it is of a technical,

administrative or executive nature. [Glenister]
1)

Note: Is the treaty subject to ratification? Y/N

Food For Thought:
Minority and Majority held that the signature of a treaty does not
automatically bind the republic [para 89; 180]; however in VCLT 12 the
consent of a state to be bound by a treaty is expressed by signature.
VCLT 12:
1. The consent of a State to be bound by a treaty is expressed by the
signature of its representative:
a)

the treaty provides that signature shall have that effect;

b)

it is otherwise established that the negotiating States were agreed that

signature should have that; or

c) the intention of the State to give that effect to the signature appears from
the full powers of its representative or was expressed during the negotiation.
If a treaty is not subject to ratification, signature of the treaty implies ratification.
d)

the initialing of a text constitutes a signature

of the treaty when it is

established that the

negotiating States so agreed;
e)

the signature ad referendum of a treaty by a representative, if confirmed by

his State, constitutes a signature of the treaty.

Signature ad referendum means that the moment a government ratifies a treaty it is

binding.
VCLT 10 & 18:
VCLT (10)
The text of a treaty is established as authentic and definitive:
( b )

failing such procedure, by the signature, signature ad referendum or

initialing by the representatives of those States of the text of the treaty or of the
Final Act of a conference incorporating the text.
VCLT (18)
A State is obliged to refrain from acts which would defeat the object and purpose
of a treaty when:

( a )

it has signed the treaty or has exchanged instruments constituting the

treaty subject to ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or
( b ) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not unduly
delayed.
A treaty which is signed but is subject to ratification, does not establish consent to be
bound by the treaty.

2. Approval/ Ratification
Section 231(2): An international agreement binds the Republic only after it has
been approved by resolution in both the National Assembly and the National
Council of Provinces, unless it is an agreement referred to in subsection (3).
(3) An international agreement of a technical, administrative or executive
nature, or an agreement which does not require either ratification or accession,
entered into by the national executive, binds the Republic without approval by
the National Assembly and the National Council of Provinces, but must be tabled
in the Assembly and the Council within a reasonable time.

Both the National Assembly and the NCOP must approve the treaty for it to
be binding, unless the treaty is of a technical, administrative or executive
nature, or an agreement which does not require either ratification or
accession.

Legal Effect:

Does not make it law in SA, unless it is self executing agreement.

Binding on SA only on the international plane???
o Majority held: An international agreement that has been approved
has also domestic effect. [para181]
o Minority held that approval by the Houses makes the treaty only
binding at an international level.[para91]
SA incurs responsibilities towards other States if it fails to observe
treaty???
o VCLT Art 18: Requires signature states to refrain from actions which
defeat the purpose or objects of the treaty.

o Minority held: A treaty that has been ratified by a resolution of

Parliament is binding on SA and a failure to observe the provisions
of this treaty may incur responsibility towards other states.
SA undertakes to take steps to comply with the substance of the
agreement.
o Minority held: This undertaking is binding between SA and other
states at an international level. [para91]
The undertaking can only be given effect to if incorporated in
national law or bringing the laws in line with the agreement.
[para91]
The treaty itself cannot be a source of rights & obligations domestically,
until it has been incorporated into domestic law. [para92]
VCLT 2(1)(b) & 14 & 16:
2(1)(b): ratification, acceptance, approval and accession mean in each
case the international act so named whereby a State establishes on the
international plane its consent to be bound by a treaty;
(14):

The consent of a State to be bound by a treaty is expressed by

ratification when:
( a )

the treaty provides for such consent to be expressed by means of

ratification;
( b ) it is otherwise established that the negotiating States were agreed that
ratification should be
required;
( c ) the representative of the State has signed the treaty subject to ratification;
or
( d ) the intention of the State to sign the treaty subject to ratification appears
from the full powers of its representative or was expressed during the
negotiation.
(16):
Unless the treaty otherwise provides, instruments of ratification, acceptance,
approval or
accession establish the consent of a State to be bound by a treaty upon:
( a ) their exchange between the contracting States.
3. Incorporation
Section 231(4): Any international agreement becomes law in the Republic when
it is enacted into law by national legislation; but a self-executing provision of an

agreement that has been approved by Parliament is law in the Republic unless it
is inconsistent with the Constitution or an Act of Parliament.
Legal Effect:

An enacted treaty becomes law and has the same status as domestic law.

The treaty enacted in an Act becomes a source of statutory rights and

obligations; BUT constitutional rights & obligations only in the context of
states of emergency.

Enjoys same status as any other legislation; unless parliament explicitly

elevates it to a superior status in relation to its general application or in the
event of a conflict between the treaty & domestic legislation (in which case
usual rules of interpretation apply).

Glenister:
Incorporation of a treaty can be done in three ways:[para99]
1.

The treaty can be incorporated in the provisions of the Act itself.

2.

The treaty can be embodied in a schedule to a statute.

3.

The treaty can be given effect through enabling legislation which permits a
Parliamentary Notice in the Government Gazette.
39. Interpretation of Bill of Rights
When interpreting the Bill of Rights, a court, tribunal or forum... must consider
international law
Legal Effect:

S39 does not create statutory rights and duties which can be directly
imported from international law into domestic law.

It is merely an interpretative tool when interpreting the BOR.

Exceptions

Treaties of a technical, administrative or executive nature

Meaning:
Agreements of a routine nature that flow from the daily activities
of governmental departments (Botha)
One must look at the intention of the parties to ascertain whether it
is a treaty of this kind.
Governmental guidelines proscribe that treaties which fall under
this definition are treaties which contain no extra financial
implications or implications on domestic law.
Procedure:

Self Executing Treaties

Meaning:
Procedure:
Quagliani
Food for Thought:
Reflect on the implication of the Quagliani decision & its interpretation of s
231(4).

Glenister provided only three options whereby IL became domestic law; these
anticipated national legislation after the treaty had been approved by
Parliament.

Quagliani differed from the above decision, in finding that prior existence of
legislation can anticipate enactment of an IL Agreement, without that
Agreement being incorporated in the provisions of the Act itself, such as
being embodied in a schedule to a statute or given effect through enabling
legislation.

Or alternatively the prior provisions of the Act enable the domestication of

the IL Agreement, without further domestication by Parliament.

Methods employed by the legislature in the transformation process (the

three principal methods)
1) The treaty can be incorporated in the provisions of the Act itself.
2) The treaty can be embodied in a schedule to a statute.
3) The treaty can be given effect through enabling legislation which permits a
Parliamentary Notice in the Government Gazette.
Resolutions of International Organisations
Resolutions are not treaties, and are generally not binding.

If SA wants to translate a resolution into domestic law, it must

incorporate it through legislation.

UN Special Resolutions are binding on Member States.

a. Is There a Need for Parliament to Play a Greater Role in Treaty

Negotiation and Ratification?
i. Possibly as Parliament needs to know of history and
content of the treaties entered into by the executive
before it can make an informed decision on whether to
approve the treaty.
Glenister:
Reflect on how youd critique the decision, what is problematic about the
decision, what the effect/impact of the approach in Glenister is.


Is the statement that the national executives negotiating and signature does not
automatically bind the Republic reconcilable with art 12 VCLT?

No, as Art 12 specifically provides that the signature of a treaty is consent of

a State to be bound by a treaty.

Does an approval by resolution in Parliament bind the Republic on an

international plane? Can an approval incur responsibilities towards other States if
SA fails to observe the treaty?

Yes, according to the minority.

Yes, SA may incur responsibility towards other states for the failure to
observe a treaty.

Further VCLT Art 18 provides that states must not defeat the purpose and
objects of a treaty.

What is the legal effect of the actual ratification by the national executive?

Which Bill of Right is to be interpreted in terms of s 39(1)(b) and which to be

protected/fulfilled?

INTERNATIONAL

LEGAL

PERSONALITY (ILP)
Definition
Whether an entity has rights and duties under the law enforceable under the
law.

ILP requires both legal and political recognition.

Legal recognition means that the entity is recognised as having rights and
duties enforceable under IL.

Political recognition means that the entity possesses the participation and
interaction of the international community.

Full or partial ILP

One must distinguish between international actors with full or partial ILP. Entities
with partial ILP do not enjoy the full range of rights and duties as those entities
with full ILP.
Full ILP:
States are the primary subjects of IL, as they are the main actors and creators of
rules of IL.
States possess full ILP.
Inter-governmental organisations possess full ILP.
Partial ILP:
Individuals are generally regarded as having partial ILP. This is due to states
signing treaties which grant certain IL rights and protection to individuals.
However a contrary theory states that individuals do possess full ILP regardless
of State consent, as IL grants certain international human rights to all individuals;
further under international criminal law, individuals may be prosecuted and thus
have full accountability.
Individuals have partial ILP, as they are not the main actors of IL and thus do
not possess all the rights and duties of a State.
Multinational Corporations are regarded as having partial ILP.

Further the WTO (World Trade Organisation) has been reluctant to give
multinationals full ILP.

Multinationals are subject to the same arguments as individuals.

International non-governmental organisations (eg. Red Cross) possess partial

ILP.

ILP for international organisations

What is an international organisation?
an organization established by a treaty or other instrument governed by
international law and possessing its own international legal personality.
International organizations may include as members, in addition to States,
other entities (Art 1 of the Draft Articles on the Responsibility of
International Organisations, 2011)

Does UN possess ILP? - The Reparation case, 1949, ICJ

The UN was established by treaty between several states (UN Charter 1945) and
includes states as its members.
Reparation for Injuries Suffered in the Service of the United Nations
Issue:
Whether the United Nations could sue Israel (a non-member state) for the death
of Count Bernadotte of Sweden, a UN mediator assassinated while on duty in
Palestine.
Held:
The UN charter does not explicitly grant the UN ILP, however the Charter does
grant rights and duties to its members. For example member states are required
to give the UN assistance in certain circumstances. As such the UN is a bearer of
rights and duties, as States have granted ILP to the UN.

Therefore the UN is a subject of international law and capable of

possessing international rights and duties, and that it has capacity to
maintain its rights by bringing international claims.
Implication:
The UN can bring a case against another State for itself or its agents as an
International Organisation.
However it does not mean that the UN has become a State or a super-state, or
has rights and obligations which are the same to that of a state.

Legal personality of the African Union (Femi Falana v AU)

Femi Falana v AU
Held:
Does AU possess ILP?
Yes, the AU possesses ILP separate to that of its member states.
Can treaty obligations be imposed on the AU?
As the AU possesses ILP, treaty obligations can only be imposed on it if the AU
is a party to the treaty, or obligations are imposed under any other international
legal means.

Can the AU be sued?

The AU cannot be sued on behalf of its member states; it can only be sued if it
is a party to the treaty.
If the AU harms an individual, only the State of that individual can sue the AU.

The AU has full ILP.

Legal personality of NATO

Would the North Atlantic Treaty Organization (NATO) qualify as having ILP
or not?
1. North Atlantic Treaty (NAT) of 1949 says nothing about the ILP of the
organisation.
2. Ottawa Agreement of 1951, also says nothing on the ILP.
a) However Art 4 & 25 uses the concept of a juridical person in
reference to NATO.
b) This enables the organisation to contract with other states.
3. Doctrine of Implied Rights:
a) Does the IO have certain powers and rights by implication of their
practices.
b) The constitutional status of the IO grants rights and duties to the
organisation. (Similar to the exercise used by the ICJ in the
Reparation Case)
4. Therefore NATO has the status of an IO, and can therefore possess full
ILP.

CRITERIA FOR STATEHOOD

Know requirements of state recognition; cite examples when discussing the
requirements

Introduction to Statehood
Statehood is the status of being a State.
There are two ways of attaining statehood:
1.

Recognition by existing states.

2.

Compliance with statehood criteria.

The Montevideo Convention of 1933 and the four criteria

Art 1:
The state as a person of international law

should possess the following

qualifications: (a) a
permanent population; (b) a defined territory; (c) government; and (d)
capacity to enter into
relations with the other states.

Widely accepted as setting out the customary law requirements of statehood.

The structure of a state does not have to follow a rigid pattern [Western
Sahara Case]

Permanent Population

There is no minimum number of inhabitants required for a state.

Falkland Island
This issue was raised in the case but not answered.

Defined Territory
There must be an organised community within a defined territory, and that
territory belongs to that community.
1.

There is no specific size to the territory.

2.

The boundaries of the community need not be clearly defined.

South Sudan

The borders of South Sudan are still not clearly defined and no exact
certainty exists as to

their limits. Yet it is recognised as a state.

Israel
Israels borders have been contested for the past 30 years, and as such
are not clearly

defined. Yet it is recognised as a state.

3. The community need not occupy a single unbroken territory; the territory can
be divided by another country.
Pakistan
Pakistan was divided into west and east Pakistan with Bangladesh in the
middle. However it was still recognised as being one State.
Alaska
Alaska is a state of the USA, and is separated from the rest of the USA by
Canada.

Government
The government must be effective:
1. It must exercise effective control over the population.
2. It must be independent.
a) Formal independence: A state is not recognised by the international
community, yet complies with all the MV requirements.
b) Functional independence: The State is able to enter into relations with
other states.
(Note: Financial aid does not affect independence)
Croatia & Bosnia-Herzegovina

No effective government at independence as the country was embroiled in a

civil war.

Democratic Republic of the Congo (DRC)

No effective government at independence as the country was embroiled in a

civil war.

Somalia

Failed state: Lost effective control of the population, yet it is still recognised
as a state.

Palestine

Capacity to Enter into Relations with Other States

Independence and the Recognition by other states is key to this requirement.

South Africa

Pre-1910:

Had capacity to enter into relations with other states but this capacity was
restricted by British approval, with the exception of the Orange Free State.

1910 - WWI:

Lacked capacity to enter into relations with other states, as SA Parliament

was subordinate to the UK Parliament and the UK exerted control over
treaties of a political nature.

WWI - on-wards:

SA gained independence from the UK and became a member of the League

of Nations. Therefore SA gained full ILP as a state.

TBVC States

Granted constitutional independence by SA.

Had the capacity to enter into relations with SA, but was not recognised by
the international community and as such did not enter into relations with any
other state.

S v Banda:

An entity possessing all the other essentials of being a State cannot be

regarded as not having the capacity to enter into relations with other States if it
is denied the opportunity to demonstrate this capacity in practice.
Therefore according to this view; a proclaimant state complying with all the other
requirements should be afforded automatic statehood. This view has yet to
receive much support, as states do not consider the recognition of other states
to be a legal duty. Thus it is within the prerogative powers of states to recognise
other states through traditional unilateral recognition. Recognition is guided in
part by political motives, active non-recognition by other states and by the
persuasive force of UN membership.

Recognition by other states is necessary to have the capacity to enter

into relations with other states.

Turkish Republic of Northern Cyprus (TRNC)

Similar to TBVC states.

Only recognised by Turkey; the international community refused to recognise

the state.

UN Resolution 541 (1983): The unilateral declaration of the state was

invalid.

UN Resolution 550 (1984): Said the same thing.

Unilateral declaration of independence

Rhodesia

Declared independence unilaterally from Britain.

Established a racial minority regime: This breached a peremptory norm of

self-determination.

Therefore the unilateral independence was illegal.

Southern Rhodesia was not recognised as a State.

Kosovo

Declared independence unilaterally in 2008.

The ICJ found in its Advisory Opinion on Kosovo that general international
law contains no applicable prohibition of declarations of independence, but:

A state should not emerge out of illegality.

The statehood should be lawful otherwise other states will not recognise
it.

96 States independently recognise Kosovo but internationally (ie. In the UN)

it is not recognised.

Therefore a state can declare independence but it will not automatically be

granted recognition; this lack of recognition will in turn affect the functional
independence of a state.

A critique of the application of the Montevideo criteria in

brief
There is a discrepancy in the application of the requirements.
Effective control over an area will not automatically lead to recognition of
statehood.
Legality.
Failure to comply with the MV criteria does not conclusively mean the state
will not be recognised as a state.

Other factors that may be relevant

Respect for human rights and self-determination.

o Pre-1945: Human rights were not important to the recognition of
states. However this requirement is more important in the granting
of recognition. Cf. Kosovo.
o Does the requirement of compliance with human rights apply
retrospectively? No, as the practice of states does not permit this.

Thus States that are recognised still retain statehood regardless of

their human rights record.

Minority rights.
Decolonisation.
Political considerations.
Collective recognition/ non-recognition.

RECOGNITION OF STATES
Introduction to recognition of States
A distinction must be made between states and governments. A government is
not permanent and does not have an impact on the ILP of the state.

What is Recognition
Recognition is the formal acknowledgment that an entity is a state (or
government).

There is no legal duty to recognise a state except in certain circumstances.

Exceptions are those states that emerge as a result of decolonisation;

there is a duty on states to recognise the decolonised state.

Recognition and Statehood

If the need for recognition is important, the Montevideo requirements

become less stringent, and states will often recognise a state that does not
comply with all the requirements.

Recognition is dependent on political considerations opposed to legal factors.

Examples:
Taiwan broke away from China, and complies with all the criteria for
statehood, but it is not widely recognised as a state. Further China &
USA will never recognise Taiwan in the UN, as such Taiwan will not
gain UN membership.
Panama broke away from Colombia and USA immediately recognised
Panama, in order to build the canal.
Croatia and Bosnia-Herzegovina were asked to give assurances of
protection of human rights; these states did not give this assurance
yet they were still recognised in order to quell the internal violence.

When a state is recognised, other states bear specific rights and obligations
in relation to that state.

Recognition is also dependent on whether the state respects democracy, is

peace-loving or whether the state has breached a peremptory norm when it
formed.

Theories that govern the recognition of States

Constitutive theory (subjective)
a) Recognition is an additional criteria for statehood.
b) Therefore under this theory all four requirements of the MV
convention must be met, together with the recognition of the state.
4C + R = S

c) If the state is not recognised it will not be considered a state and

therefore will have ILP.
Criticism:
Creates a situation of partial statehood/personality/ unknown state
effect.
The state is a state according to the MV criteria but is not recognised
as a state by other states.
It is unclear the number of states that need to recognise another state
in order to satisfy the recognition element.
A non-recognised state can argue that it does not need to comply with
IL obligations are they are not a legal person in international law.
Contradicts the principle of effectiveness.
Inconsistent with the principle of sovereign equality (all states are
equal) as it implies that existing states are superior to proclaimant
states as the prior states must give recognition to the latter in order to
satisfy statehood.
Solution:
Lauterpacht: A legal duty to recognise other states must be placed on
existing states.
However current state practice will not permit this legal duty to
emerge as states want to have political control over which states they
recognise.

Declaratory theory (objective)

a) Recognition is not an additional requirement for statehood.
b) States need only satisfy the four criteria of the MV Convention.
Criticisms:
How can a state fulfill the last requirement of entering into relations
with other states, if the other states will not recognise it.
Judicial inquiry into the merits of both theories S v Banda, 1989

Favoured the declaratory theory as this theory was supported by most

writers, it was more objective and less subjective than the constitutive
theory.

Criticisms: The judgment focused on the recognition of governments and not

on states.

Recognition is important and cannot be ruled out.

Current practice
Leans toward the declaratory theory, a one or two states can recognise a
proclaimant state and thereby satisfy the 4th requirement.
Recognition still plays a role in statehood and is influenced by political
considerations.

Unilateral recognition
Definition: An individual state, already accepted as a state, recognises that an
entity claiming to be a state, meets all the factual requirements of statehood and
is therefore to be regarded as a state, with rights and duties attached to
statehood.

No rules prescribe unilateral recognition.

A state may be recognised by public declaration, or through the conduct of a

state in relation to another. However with the latter form intention to
recognise a state must be proved.

South Africa and Rhodesia

South Africa continued to have diplomatic relations with Rhodesia, even though
Rhodesia was not recognised by the international community. Did the diplomatic
relations imply that SA recognised Rhodesia? Held: No, SA did not recognise
Rhodesia, as it lacked intention to recognise.
Taiwan and USA
USA has a consulate in Taiwan. However these diplomatic relations do not imply
that USA has recognised Taiwan.

States can set conditions on recognition:

Example: Palestine was granted non-observer member status by the UN.

Was this an act of recognition? Can argue both ways.

Decides to accord to Palestine non-member observer State status in the

United Nations, without prejudice to the acquired rights, privileges and
role of the Palestine Liberation Organization in the United Nations as the
representative of the Palestinian people, in accordance with the relevant
resolutions and practice

This upgraded the Palestinian Authoritys status at the United Nations

from a permanent observer entity to a non-member observer
State.However, this upgrade in Palestines status at the United Nations
does not necessarily equate full-fledged membership in the international
community.

Declarative Theory: Palestines status as a State suffers several

defects under the declarative theory test. First, Palestines territory is
subject to much dispute, with some proponents of a Palestinian state
arguing that Palestine encompasses the territory of the West Bank and
Gaza Strip, and other advocates arguing that Palestine encompasses all
of modern day Israel, which they contend is not a legitimate State. The
question of a defined territory is thus subject to much dispute.
Moreover, the Palestinian Authority does not have exclusive authority
over any of the aforementioned territory: much of the West Bank is coadministered with Israel and the Gaza Strip is administered by Hamas.

The second issue that Palestine faces under the declarative theory is that
of an effective government. In order to qualify as a State, an entity must
have a government with effective control over the territory in question.
There is currently no single entity that is in effective control of the whole
territory of Palestine. The ruptures in the relationship between Hamas in
the Gaza Strip and Fatah in the West Bank is the main reason many
critics including the United States argue that there is no Palestinian
government with consolidated control over all of Palestines territory.

Constitutive Theory: If Palestine were unable to meet the elements of

the declarative theory test, it may be able to turn to the constitutive
theory of state recognition, which holds that an entity is a State when
recognized as such by the international community. Recognition refers
to the formal acknowledgment by other States that an entity is a State.

Under this theory, the General Assembly Resolution is highly relevant to

the question of Palestinian statehood. The vote of 138 nations affirming
Palestinian statehood reflects the voluntary and independent political
decision of States that is critical to the constitutive theory test. Since the
majority of the international community recognizes it as a State,
Palestine may invoke the legal construct of the constitutive theory in its
bid for statehood.

However, the constitutive theory is problematic in many respects. First,

the theory is weakened by the problem that may arise when some but
not all States recognize an entity as a State. What is to come of the nine
nations that voted against Palestinian statehood and the forty one
abstentions, constituting a total of twenty seven percent of General
Assembly members that were present during the vote?

Partial statehood does not exist in the international legal order, and the
constitutive theory does not provide an answer to the anomaly of partial
State recognition.

Although the Resolution does not constitute binding international law, it does
bring Palestine one step further towards statehood under both the
constitutive and declarative theories. The vote shows that Palestine has
significant recognition by the international community as a State, thus
fulfilling the criterion of the constitutive theory, which while being flawed is
still adhered to by some contemporary theorists. Moreover, with Palestines
formal recognition by 138 countries, it will be able to effectively enter into
relationship with other States, which is one of the four elements of the
declarative theory test. Thus, while the General Assembly Resolution is not
dispositive of Palestines statehood, it is evidence of a growing recognition of
Palestine as a State.

Collective recognition and its effects / significance

Definition: A group of states recognises the existence of a claimant state directly,
by an act of recognition, or indirectly through admission of the state into the
organisation.

Collective recognition is also influenced by whether the entity was formed

legally or illegally (peremptory norms).

Collective recognition by the UN

Article 3
The original Members of the United Nations shall be the states which, having
participated in the United Nations Conference on International Organization at
San Francisco, or having previously signed the Declaration by United Nations of 1
January 1942, sign the present Charter and ratify it in accordance with Article
110.
Article 4

Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of
the Organization, are able and willing to carry out these obligations.
The admission of any such state to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the
Security Council.
Example:

South Sudan: The UN did not look at the MV requirements to see if South Sudan
was a state. It merely looked at whether it complied with UN membership
requirements.
UN adopted Resolution SC 1999 (2011) and Resolution GA A/65/L.84 thereby
admitting South Sudan as a member.
Legal Effect of Membership
1. Constitutes powerful evidence of statehood as it presupposes statehood.
2. Once accepted as a member, the state is guaranteed statehood and other
states cannot contest the states validity of statehood.
a) UN members can still unilaterally refuse to recognise a state. Example:
Arab states do not recognise Israel, despite both being members of the
UN.

Collective recognition by the EU

Declaration on the `Guidelines on the Recognition of New States in
Eastern Europe and in the Soviet Union' (16 December 1991)
In compliance with the European Council's request, Ministers have assessed
developments in Eastern Europe and the Soviet Union with a view to elaborating
an approach regarding relations with new states.
In this connection they have adopted the following guidelines on the formal
recognition of new states in Eastern Europe and in the Soviet Union:
The Community and its Member States confirm their attachment to the principles
of the Helsinki Final Act and the Charter of Paris, in particular the principle of selfdetermination. They affirm their readiness to recognize, subject to the normal
standards of international practice and the political realities in each case, those
new States which, following the historic changes in the region, have constituted
themselves on a democratic basis, have accepted the appropriate international
obligations and have committed themselves in good faith to a peaceful process
and to negotiations.

Therefore, they adopt a common position on the process of recognition of these

new States, which requires:
- respect for the provisions of the Charter of the United Nations and the
commitments subscribed to in the Final Act of Helsinki and in the Charter of
Paris, especially with regard to the rule of law, democracy and human rights
- guarantees for the rights of ethnic and national groups and minorities in
accordance with the commitments subscribed to in the framework of the CSCE
- respect for the inviolability of all frontiers which can only be changed by
peaceful means and by common agreement
- acceptance of all relevant commitments with regard to disarmament and
nuclear non-proliferation as well as to security and regional stability
- commitment to settle by agreement, including where appropriate by recourse
to arbitration, all questions concerning State succession and regional disputes.
The Community and its Member States will not recognize entities which are the
result of aggression. They would take account of the effects of recognition on
neighbouring States.
The commitment to these principles opens the way to recognition by the
Community and its Member States and to the establishment of diplomatic
relations. It could be laid down in agreements.
Declaration on Yugoslavia (Extraordinary EPC Ministerial Meeting,
Brussels, 16 December 1991)
The European Community and its Member States discussed the situation in
Yugoslavia in the light of their Guidelines on the recognition of new states in
Eastern Europe and in the Soviet Union. They adopted a common position with
regard to the recognition of Yugoslav Republics. In this connection they
concluded the following:
The Community and its Member States agree to recognize the independence of
all the Yugoslav Republics fulfilling all the conditions set out below. The
implementation of this decision will take place on 15 January 1992.
They are therefore inviting all Yugoslav Republics to state by 23 December
whether:
- they wish to be recognized as independent States
- they accept the commitments contained in the above-mentioned Guidelines

- they accept the provisions laid down in the draft Convention - especially those
in Chapter II on human rights and rights of national or ethnic groups - under
consideration by the Conference on Yugoslavia
- they continue to support
- the efforts of the Secretary General and the Security Council of the United
Nations, and
-the continuation of the Conference on Yugoslavia.
The applications of those Republics which reply positively will be submitted
through the Chair of the Conference to the Arbitration Commission for advice
before the implementation date.
In the meantime, the Community and its Member States request the UN
Secretary General and the UN Security Council to continue their efforts to
establish an effective cease-fire and promote a peaceful and negotiated outcome
to the conflict. They continue to attach the greatest importance to the early
deployment of a UN peace-keeping force referred to in UN Security Council
Resolution 724.
The Community and its Member States also require a Yugoslav Republic to
commit itself, prior to recognition, to adopt constitutional and political
guarantees ensuring that it has no territorial claims towards a neighbouring
Community State and that it will conduct no hostile propaganda activities versus
a neighbouring Community State, including the use of a denomination which
implies territorial claims.
Summary:
Approach in 1999: the ability and willingness to respect IL was a requirement.

Respect for IL meant that the state would respect IL obligations and be a
reliable member of IL.

Adopted an approach of conditional recognition.

Palestine: No consensus between EU members on whether to recognise it.

Collective recognition by the AU

Article 9: Powers and Functions of the Assembly
1. The functions of the Assembly shall be to:
(c) consider requests for Membership of the Union;
2. The Assembly may delegate any of its powers and functions to any organ of
the Union.

Article 29: Admission to Membership

1. Any African State may, at any time after the entry into force of this Act, notify
the Chairman of the Commission of its intention to accede to this Act and to be
admitted as a member of the Union.
2. The Chairman of the Commission shall, upon receipt of such notification,
transmit copies thereof to all Member States. Admission shall be decided by a
simple majority of the Member States. The decision of each Member State shall
be transmitted to the Chairman of the Commission who shall, upon receipt of the
required number of votes, communicate the decision to the State concerned.
Article 30: Suspension
Governments which shall come to power through unconstitutional means shall
not be allowed to participate in the activities of the Union.
Article 31: Cessation of Membership
1. Any State which desires to renounce its membership shall forward a written
notification to the Chairman of the Commission, who shall inform Member States
thereof. At the end of one year from the date of such notification, if not
withdrawn, the Act shall cease to apply with respect to the renouncing State,
which shall thereby cease to belong to the Union.
2. During the period of one year referred to in paragraph 1 of this Article, any
Member State wishing to withdraw from the Union shall comply with the
provisions of this Act and shall be bound to discharge its obligations under this
Act up to the date of its withdrawal.

Legal Effect of Collective Recognition

1.

Confers statehood to a new state in IL.

2.

Recognises the state as a subject of IL.

3.

Shows that other states are willing to enter into political relations with the
state.

4.

May imply that the state complies with all the MV requirements.

5.

Other states in the organisation are estopped from denying the statehood of
the state.

6.

Collective recognition is not binding on individual states - individual states

are still permitted to not recognise another state.

Collective non-recognition and its legal effect

1)

The entity breached IL or peremptory norms. Eg. TBVC states were not
recognised by the UN on the basis of violation of peremptory norms of selfdetermination, systematic racial discrimination and so on. The TRNC: Turkey
invaded Cyprus; a breach of the prohibition of force.

2)

Non-recognition can be used as means of sanction.

3)

Can also be used as a means of compliance with IL.

Is it possible to withdraw recognition in relation to States?

States are estopped from withdrawing recognition of other states; however

the same does not apply for governments.

However withdrawal remains a possibility, yet in practice it is not seen.

It is difficult to withdraw recognition for failed states:

Somalia: A failed state as there is no government. It exists as a juridical

person only, as it fails to meet all the MV requirements. However it is still
recognised as a state and retains ILP.

Solutions:
Place the failed state under trusteeship.
Other states give their assistance in a state-building operation.

Criticisms of Statehood Recognition

Distinguish between the theories and the criticisms
Exam:
1.

Statehood definition.

2.

MV Art 1: four criteria.

3.

Critique criteria in relation to UN membership Art 3&4.

4.

Self-determination and other factors relevant.

5.

Collective recognition may grant statehood.

Look at the question in relation to the marks allocated to it.

RECOGNITION OF GOVERNMENTS
Introduction to recognition of government
Definition: Recognition is the formal acknowledgment that an entity is a
government of a state.
General rule: Changes in government do not affect the ILP of the State or its
rights and obligations
There are two ways in which a government takes power:
1)

Constitutional means:
a)

IL rights and obligations and diplomatic relations are not affected;

therefore the question of recognition does not arise.

2)

Unconstitutional means:
a)

Here the question of whether the government is accorded with the same
IL rights and obligations arises.

b)

The new government might not have effective control over the
population; be unwilling to comply with its IL obligations; be controlled by a
foreign power; might have a poor human rights record; or may adhere to a
different ideology.

c)

Q: Whether the government is the true representative of the state and

should be recognised.

Governments in Exile
A government that is forced into exile is still a legitimate government and can be
recognised; even though they do not currently control the populace.

Legitimating role of recognition

The recognition of a government by another state implies that that the means by
which that government came to power was legitimate. Therefore recognition can
imply a political endorsement of illegal governments/ methods.
UK Policy

The government is distinct from the state. The UK only recognises states.
(1980s)

Moved to the informal recognition of governments and states.

Eg. Libya: Issued statements that the NTC is the legal representative of the
Libyan People (de jure recognition) and the NTC is the sole authority in
Libya (de facto recognition).

Factors of Recognition
a) Political considerations: The need for continuity and stability in foreign
relations.
b) Effective control doctrine: Whether the government has effective control
over the territory and the population.
c)

Popular support: The bulk of the population supports the government and
are willing to follow it. However this does not mean that the government
must be democratic or elected.

d) Stability/Permanence: The government must be stable. Relates to the

control principle.
e) The government is able and willing to fulfill its IL obligations.

Forms of recognition of government and effect (de jure & de

facto)
De facto: The government is simply the factual government in place at the
time.

This recognition occurs when there are doubts as to the ideology,

willingness to comply with IL obligations and the stability of a
government.

Eg. Britain did not initially recognise the USSR for these reasons.

During the Spanish Civil War, Britain recognised two governments, one
being de jure , the other de facto.

De facto recognition results in no diplomatic relations between the states

and the government cannot claim assets from the other state.

De jure: The government is the legal and legitimate government in law. This
implies a stronger recognition which will allow governments to access assets
etc.

The recognising state accepts the effective control and permanency of a

government.

Therefore there is no legal impediment to recognition.

Legal Effect: It is difficult to withdraw de jure recognition but easy to

withdraw de facto recognition.
Liberia v Bickford
Liberian government wanted to access the government assets held by Bickford,
the previous presidents lawyer. However at that time, the Liberian government

did not have effective control over the population as 50% of the population was
actually controlled by rebels.
Held: Effective control is not sufficient for the legitimacy of a government; other
factors come into play. The court held that the interim government had standing
and therefore was a legitimate government.

South Africas approach to recognition

Apartheid:
SA avoided any explicit statements on recognition but looked at:
1. Effective control over a territory.
2. Permanency.
a) Eg. Lesotho: Prime Minister of Lesotho seized control unconstitutionally.
SA continued relations but did not make any statements over the
recognition of the illegal government.
b) Eg. Taiwan: Recognised Taiwan as the government of China.
Post- Apartheid:
SA would make statements but does not recognise explicitly governments.
Eg. Taiwan: Switched recognition of the government of China to Beiging.

DECOLONISATION,SELF-DETERMINATION,SECESSION AND
STATEHOOD
Decolonisation

and

its

impact

on

recognition

and

statehood

Decolonisation is the undoing of colonisation.

UN Charter:
Implicit recognition of colonisation through Art 73(e) & 76(b):
Art 73(e):
Places an obligation on the administrating state to develop self-government
in those territories under its control.
Art 76(b):
Added

an

obligation

of

development

towards

self-government

independence.
The subsequent illegitimacy of colonialism: Art 1(2) & Art 55:

or

Art 1(2) & 55:

Recognised the principle of self-determination of peoples.

Self-determination was originally only a principle and not a right.

There was a move towards the recognition os self-determination as a right

and not a principle in the 1960s.

As such colonialism was seen to be illegitimate and colonial masters were

forced to decolonise.

The 1960 Declaration (Res 1514 (XV)) was instrumental in this regard; in
recognising

the

right

to

self-determination

and

the

subsequent

decolonisation.

This Resolution outlawed colonialism.

Recognised that non-self governing territories have a right to selfdetermination.

Hence these countries could either become interdependent states or

merge with an existing state.

All peoples have the right to self-determination; by virtue of that right

they freely determine their political status and freely pursue their
economic, social and cultural development

Any attempt aimed at the partial or total disruption of the national unity
and territorial integrity of a country is incompatible with the Purposes and
Principles of the Charter of the United Nations.

Any inadequacy in economic, social, educational or political preparedness

should not bar independence.
This resolution had an impact on the statehood criteria, in that these
criteria were relaxed in order that new states may be recognised,
even if they did not comply with all the MV criteria.
In particular the criteria of effective government and independence
was relaxed, thereby enabling new states to enter into relations with
other states.
This Resolution permitted the automatic creation of new states once a
territory was decolonised.
If the territory was exceptionally ill suited to independence, it was
placed under a trust system until it could attain its independence.
Exam: Explain history and the result

Right to self-determination
What does it mean?
Self-determination is a right for a people to exercise their political, economic
and social status.
Essentially it is the right to choose your own destiny.

This includes your political status, and your economic, cultural and social
development.

There are two forms of the right Internal and External:

Internal exercising of the right entails a change in government or political

integration.

External self-determination results in independence.

What is the nature (or content) of the right?

Does the right to self-determination give a minority ethnic group within
South Africa the right to determine its destiny by seceding from the
state and creating a new state?Under what circumstances would it
apply?
The nature of the right:

Self-determination is a legal right under IL, as protected in various IL

instruments such as:

Art 1(2) & 55 of the UN Charter

Art 1 of the ICCPR.

Art 1 of the ICESCR.

Confirmed as an IL right in the ICJ cases of Western Sahara and the

Namibia Opinion.
These cases confirmed that self-determination is a norm of IL.

Art 20 of the African Charter.

Self-determination has an erga omnes character.

However it is a qualified right as the exercise of it cannot disrupt the

national unity or territorial integrity of a state.{Res 1514}

This qualification was reaffirmed in 1970 Declaration (Res 2625).

Circumstances of Exercising the Right

The right was used in the colonial context only; the external manifestation
cannot be applied in post-colonial contexts.

The ICJ limited the right to colonial contexts only.

However the right can still be exercised presently; however people

may only exercise the right within existing state boundaries ie.
Internal self-determination.

The internal manifestation would respect the principle of territorial integrity.

Katangese People v Zaire (former DRC)

The Katangese People wished to secede from Zaire as they felt that their internal
right to self-determination was not being respected.
The UN held that the region could not secede from Zaire, as people must respect
the principles of territorial integrity.
The African Commission also held that the Katangese People must comply with
the principles of territorial integrity, unless they can show certain circumstances
which would permit them to secede. In other words the Katangese People need
to show evidence of human rights violations and the denial to participate in
government (a denial of internal self-determination), before the region could
secede (an exercise of external self-determination).

There is no clear definition of people.

It may refer to a population within a state or a particular territory.

The people must share common characteristics.

The people must be a homogeneous group; not a heterogeneous group.

Ie. Not compiled of different ethic groups.
The Katangese People were found not to constitute a people.

A population must first attempt to exercise an internal right to selfdetermination before they are permitted to exercise an external right.

In Re Quebec
The court held that a region cannot unilaterally secede if no human rights
violations (such as a denial of internal self-determination) are shown.
An external right to self-determination can only be exercised in extreme
circumstances such as foreign military occupation, or the denial of
political access in government.

Therefore the right of self-determination restricts secession but secession can

still occur when certain circumstances or criteria are met.

Kosovo Opinion:ICJ
The court held that there is no IL restricting secession.
international

law

independence.

contains

no

applicable

prohibition

of

General

declarations

of

Therefore

the

right to

self-determination

both

enables and

restricts

secession.

An internal right must first be exercised before the external right can be
exercised.

Section 235: SA Constitution

The right of the South African people as a whole to self-determination, as
manifested
in this Constitution, does not preclude, within the framework of this right,
recognition of
the right of self-determination of any community sharing a common cultural and
language heritage, within a territorial entity in the Republic or in any other way,
determined by national legislation.
People must share a common cultural and language heritage.
The constitution permits an external manifestation of the right, however the
people must show that they comply with the requirement above ie. That they
are a people as defined.
Further such self-determination must be determined by national legislation.

Principles of Territory
INTRODUCTION
Territory Definition:
A defined portion of the surface of the globe which is subjected

to the

soverignity of a state.
This includes:
Land
Airspace above the land.
Maritime sea.

It is a requirement of statehood that a state has a defined territory.

A state cannot exercise its sovereignty and jurisdiction without territory.

Exception: Antarctica - No-one can claim this territory; a state may only
exercise jurisdictional soverignity over its nationals in that territory.

Different types of international legal systems and regimes recognise the

principle of territorial exclusivity. This principle holds that a state exercises
exclusive power and thus jurisdiction within its territory.
Principle of Territorial Exclusivity: A state exercises exclusive power and
jurisdiction within its territory.

Modes of Acquisition
Trust territories
Terra nullius
Res communis

INTERTEMPORAL LAW
The Principle
Territorial titles are to be judged by the law in force at the time the title was first
asserted and not by the law of today.
Island of Palmas case 1928

Facts/arguments:
The Island of Palmas formed part of the territory which was lawfully ceded to the
USA by Spain. Spain had originally acquired the territory through conquest.
However the Netherlands also claimed the island on the basis that it had
established a lawful and peaceful government on the island. Q: Which country
was entitled to the island?

Hubers decision:
Huber decided that the Netherlands were to gain possession of the island as they
had established an effective government on the island. He applied his principles
in this way: First principle - though Spain discovered and lawfully ceded the
island to USA in accordance with the IL governing modes of acquisition at the
time (in the 16th century); the second principle comes into play in which the
existence of IL rights created previously must coincide with IL principles as they
exist at the present time. Thus the IL presently requires that an effective
government must be established on the territory in order to establish effective
control. Thus as the USA had failed to establish such a government, the Island
was awarded to the Netherlands.

Two principles of Inter-temporal law:

1. A juridical fact must be appreciated in the light of the law contemporary with
it, and not of the law in force at the time when a dispute in regard to it
arises - One needs to look at the IL at the time the territory was acquired.
2. A distinction must be made between the creation of rights and the existence
of rights. The same principle which subjects the act creative of a right to the
law in force at the time the right arises, demands that the existence of the
right, in other words its continued manifestation, shall follow the conditions
required by the evolution of law
a) Creation depends on the IL at the time the rights were created.
b) The existence of rights depends on coincidence of IL as it is presently, or
as it evolves.
c) The second principle effectively destroys the first principle.
Criticism of Hubers analysis

These principles may threaten many titles to territory, and thereby cause
instability as:

Countries may claim territories based on the fact that these territories

were acquired in a way which was internationally lawful at the time, but such
methods are not currently lawful in IL.
Every territorial title has to be reasserted in accordance with every

change in law.
However the second principle is relevant in that it maintains states title over

their territory. Such as claiming title over the continental shelf, which was only
recognised as being part of a states territory recently.
Goa
India invaded and annexed Goa, a portueguese colonial enclave on the basis that
Portugal had illegally occupied Goa by means of conquest in the 16 th century and
India was simply acting in self defence some 400 years later.
Falkland Islands
Similar argument to Goa.
Walvis Bay
SA made sure to continuously display its title over the territory of Walvis Bay as
the IL evolved. However the territory was eventually given back to Namibia upon
its independence.

UTI POSSIDETIS
The Principle
Pre-existing boundaries of states are to be respected, regardless of how the
state was originally formed.
The principle originally formed in Latin America to maintain peace and avoid the
conflict which would arise with the redrawing of boundaries along ethic lines;
however the principle was exported to Africa upon decolonisation.
OAU/AUs endorsement of the principle

The AU endorses the principle on the basis that it maintains peace within the
continent.

OAU Resolution 1964 holds that:

Considering further that the borders of African States, on the day of their
independence, constitute a tangible reality

African member states have pledged to respect existing borders.

Therefore the principle was applied in both colonial and post-colonial times.

Frontier Dispute case ICJ 1986:Application of the principle in colonial

context (the principle vs the right to (external) self-determination )
1.

Confines the principle of uti possidetis to a territory defined by the colonial

powers.

2.

Principle conflicts with the right of self-determination, but in order to

maintain stability this principle must be taken into account when determining the
right of self-determination.

3.

Uti possidetis is a customary rule of general scope which becomes

applicable once a state becomes independent.
Yugoslavia:Application of the principle beyond the colonial context

Uti possidetis was applied in this dispute, however the Commission

overseeing the breakup only used the internal provincial boundaries within
Yugoslavia which were drawn for administration purposes, not for state
purposes. Kosovo was a separate territorial unit and had some degree of
autonomy in former Yugoslavia but did not enjoy the same higher status of
the other federal states.

As such Kosovo was not granted recognition of its borders and therefore was
not recognised as a state.

This principle

often

internationalises

boundaries that

were

used

for

administrative purposes and were never meant for state boundaries.

Conclusion

The principle is controversial in IL.

It cannot be be used to solve all border disputes.

Cannot use it to solve all problems.

If new state borders are drawn by treaty, IL permits a side-stepping of the

principle.

As such the principle is not absolute.

Decolonisation has several sub-catergories. You must always start with the UN
Charter and explain the implicit acceptance of the principle and the explicit
acceptance of self-determination.

Jurisdiction
INTRODUCTION
Jurisdiction is an important part of soverignity. Soverignity empowers a state to
exercise the functions of a state within a particular territory to the exclusion of
other states.

Definition
Jurisdiction is the authority of the state to exercise governmental functions
through executive, legislative and judicial action, and judicial decrees over
persons and property.
The exercise of jurisdiction is normally limited to the territory of a state; however
a state may exercise extra-territorial jurisdiction in limited circumstances.

The three forms of jurisdiction

1. Legislative
Prescriptive: The power to make binding laws is limited to the territory of the
state.
However jurisdiction may be exercised extra-territorially.
2. Enforcement
Enforcement of the law.
3. Judicial

The settlement of disputes through the courts via the application of law.

The domestic jurisdiction clause in UN Charter- art 2(7)

Art 2(7):
Nothing contained in the present Charter shall authorise the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
state.
This article provides that any intervention in the domestic affairs of a country by
another state or international organisation is a violation of the prohibition on

foreign intervention. Such intervention is the exercise of governmental functions

or sovereign acts within the territory of another state.
However this principle is not absolute as members states are permitted to
interfere in the domestic affairs of a country if they are acting under Chapter 7 of
the UN Charter.

GENERAL PRINCIPLES
Lotus case ICJ 1927
Facts/arguments:
A French ship collided with a Turkish ship on the high seas (res communis). The
Turkish ship sank and killed several Turkish nationals. The French ship picked up
the survivors and ported in Turkey. The officer on watch was arrested, tried an
convicted of culpable homicide. The case was remitted to the PCIJ; the question
being which country could exercise jurisdiction.
France argued that only the flag state could exercise jurisdiction over acts
committed on the high seas.
Turkey argued that it had jurisdiction as the effects of the collision was felt on
Turkish territory, being the ship.
Decision: The three general rules
1) A state may not exercise its power in any form in the territory of
another state unless there is a permissive rule to the contrary. [A
state

may

exercise

jurisdiction

outside

its

territory

if

an

international rule permits it]

2) International

Law

does

not

prohibit

state

from

exercising

jurisdiction in its own territory, in respect of acts which have taken

place

outside

its

territory.

jurisdiction extra-territorially

[Therefore
unless

countries

there

is

can

IL rule

extend
which

prohibits it] States have a wide discretion to extend the application

of their laws to persons, property and acts outside their territory,
unless an IL prohibits such extension.
3) The territoriality of criminal law is not an absolute principle in
international law.

Therefore Turkey could exercise jurisdiction.

Analysis and application of Lotus principle today

Criticisms:

 It extends the jurisdiction of states to very wide parameters.

A counter argument is that it does not extend jurisdiction as most countries
require some connection between the act and the state before they will
exercise jurisdiction. These include matters committed within their territories
or having an effect in their territories, to matters affecting their nationals, or
to acts threatening the security of the state.
High Seas Convention: Art 11(1)
This convention effectively overturns the Lotus principle.

Holds that only the flag state or the state of which the alleged offender is a
national, has jurisdiction, over incidents which occurred on the high seas.

S v Basson 2005
Held: A SA court might exercise jurisdiction over a conspiracy entered into by
members of the SA Defence Force to murder certain SA administrators in
Namibia, as there was a direct and substantial link between SA and the crime.

JURISDICTIONAL PRINCIPLES
Territoriality (territorial principle)
Meaning: A state can exercise jurisdiction over all crimes occur within its territory
and over all persons responsible for such crimes, whatever their nationality.

Territory includes land, territorial waters and airspace.

Nkondo:
A court will not exercise jurisdiction over a person wanted for a non-political
crime committed in SA who is on board a ship or aircraft forced to enter SA in
distress. That person must be brough to an SA court through legal means such as
extradition.

Subjective Territoriality

A state may exercise jurisdiction where the crime is commenced within its
territory and completed in another state.

Eg. A man stands in SA and shoots a person dead across in the border in
Namibia.

Objective territoriality

A state may exercise jurisdiction where the crime is commenced in a foreign

state and completed within its territory.

Therefore both countries under this example have jurisdiction. SA will have
jurisdiction under subjective territoriality and Namibia will have jurisdiction
under objective territoriality.

Effects principle
This principle is an extension of the objective territoriality principle.

A state can exercise jurisdiction if it felt or experienced the effect of that

crime.

S v Mharapara 1986
An ex-Zimbabwean diplomat was convicted of theft from the Zim government
committed while he was on the Zim diplomatic mission in Belgium. The
jurisdiction was based on the effects principle, as the Zim government felt the
effect of the theft.
The US have used this principle in extending its anti-trust legislation to
activities which affect the US, committed outside the US.

Protection of the State (protective or security principle)

Meaning: A state may exercise jurisdiction over aliens who have committed acts
abroad that are considered prejudicial to its safety and security.

This form of jurisdiction is mostly limited to political offences, economic

offences and immigration.

R v Neuman 1949
SA was permitted to put on trial an alien who had committed acts of treason
against SA abroad.
Joyce v Director of Public Prosecutions 1946
Facts:
Joyce was born in America, but in 1933 fraudulently acquired a British passport
by declaring that he had been born in Ireland. In 1939, he left Britain and started
working for German radio.
The following year, he claimed to have acquired German nationality. The case
turned on whether the British court had jurisdiction to try him after the war, on a
charge of treason for anti-British propaganda.
Held:
The House of Lords decided that jurisdiction did exist in this case. Joyce had held
himself out to be a British subject and had availed himself of the protection
(albeit fraudulently) of a British passport. Accordingly he could be deemed to
owe allegiance to the Crown, and be liable for a breach of that duty. The fact that

the treason occurred outside the territory of the UK was of no consequence since
states were not obliged to ignore the crime of treason committed against them
outside their territory.

Nationality ( Active Nationality)

Meaning: A state may exercise jurisdiction over its own citizen, who committed a
crime in another state (ie. Extra-territorial acts)
Note: Citizens include nationals and residents of that country.
Civil v Common Law jurisdictions
Civil law countries need not have a domestic law enabling the use of this ground
of jurisdiction.
In comparison common law jurisdictions require the state to have some domestic
enabling legislation which permits the state to use this ground
S v Mharapara 1986
Trial Court: A state has jurisdiction with respect to any crime committed
outside its territory by a person or persons who is or are its nationals at the time
when the offence was committed or he is or they are prosecuted and punished
Appeal Court: Upheld conviction on the effects principle but rejected the
nationality principle. IL permits states to apply its own jurisdiction to its
nationals, but it is not a mandatory rule. Such basis of jurisdiction is not
sufficient; in addition there must be a domestic law which authorises the trial for
an offence committed abroad which would have been punishable if committed at
home.
SA Approach: There must be some enabling legislation permitting the trial of a
national for a crime committed overseas; jurisdiction based on nationality is not
sufficient.
Treason
Treason is an exception to this rule. A state can exercise jurisdiction over
offenders (state nationals) no matter where the crime was committed. This is
because the prosecution of such offender is the sole interest of that state, and
the punishment will not offend the rights of other states.
Implementation of the Rome Statute of the ICC Act 27 of 2002
Section 4(3)(a) & (b):
(3) In order to secure the jurisdiction of a South African court for purposes of this

Chapter, any person who commits a crime contemplated

in subsection (I)

outside the
territory of the Republic, is deemed to have committed that crime in the territory
of the
Republic if(a) that person is a South African citizen: or
(b) That person is not a South African citizen but is ordinarily resident in
the Republic.

Passive personality
Meaning: A state may exercise jurisdiction over a person who commits an
offence abroad which harms one of its own nationals. [The victim is the national,
and the perpetrator is a alien]
United States v Yunis (no 2) 1988
A Lebanese national hijacked a non-USA aircraft, in which some of the
passengers were US nationals.
A US court exercised jurisdiction over the Lebanese national based on this
principle.
Cutting case 1866
This concerned the publication in Texas of a statement defamatory of a Mexican
by an American citizen. Cutting was arrested while in Mexico and convicted of
the offence (a crime under Mexican law) with Mexico maintaining its right to
jurisdiction upon the basis of the passive personality principle.

Universal jurisdiction (universality principle)

Meaning: Any state may exercise jurisdiction over crimes which violate the
international legal order and in which all states have an interest in prosecuting.
Here the national court acts as the agent of the international community in the
prosecution of an enemy of all mankind in whose interest all states have an
equal interest.
Traditionally the crimes recognised (and thereby limited to) are those customary
international crimes such as piracy, slave trading, war crimes, crimes against
humanity, genocide and torture.
However this is not a closed list and conventions have conferred universal
jurisdiction on its signatories in respect to certain crimes.
Thus a state applies its own national law, irrespective of where the crime was
committed and by whom.

 The crime must be one that is recognised under customary international law
or else is recognised in a convention to which the state is a party.
The convention must be domesticated in order for it to be enforced.
Thus, technically the state applies its domestic law to an international crime.
The Rome Statute does not give the ICC universal jurisdiction; its
jurisdiction is limited to crimes committed within the territory of the
states that are parties to the convention and to crimes committed
by the nationals of such states.
ICC Act: Section 4(3)(c)
(c) that person, after the commission of the crime, is present within the territory
of the Republic.
The ICC Act grants universal jurisdiction on SA courts however the
perpetrator must be within the territory of SA for the courts to
exercise jurisdiction.
Therefore SA follows a conditional approach to jurisdiction.
However

this

provision

does

not

prevent

SA

from

making

investigations and collecting evidence for the eventual prosecution

of the offender, should they enter the country.
Geneva Convention Act
This domesticates the Geneva Convention and grants universal jurisdiction.
Sections 6(2) & 7(1):
(2) Any person, whether within or outside the borders of the Republic, who fails
to act
when under a duty to do so in order to prevent the commission of a grave
breach
contemplated in section 5(1) or an offence contemplated in section 5(3) or (4) by
any
other person, is guilty of an offence.
7. (l)Any court in the Republic may try a person for any offence under this Act in
the
same manner as if the offence had been committed in the area of jurisdiction of
that
court, notwithstanding that the act or omission to which the charge relates was
committed outside the Republic.

African Union

Held that universal jurisdiction will help close the impunity gap for
international crimes.

Universal jurisdiction and international crimes

Universal jurisdiction is permissive, not mandatory.
Universal Jurisdiction is Permissive; a State does not have to exercise it
unless it is obligated to under treaty.
International Crimes
International crimes are crimes which threaten the good order not only of
particular states but of the international community as a whole. They are crimes
in whose suppression all states have an interest as they violate values that
constitute the foundation of the world public order.
They originate in custom or in conventions aimed at the protection of human
rights or the suppression of terrorism.
Controversy
Universal jurisdiction is controversial for several reasons:
Trials in absentia.
Scope of crimes:

There is no certainty as to the limit of what crimes qualify for universal

jurisdiction.

Resources to investigate and prosecute crimes.

The collection of evidence from other countries.
Selective application of the principle.
Lack of political will.
Breach of state soverignity.
Amnesty.
Trials in absentia

Arrest Warrant case ICJ 2002

Facts:
A Belgian judge issued an arrest warrant in absentia for the arrest of the foreign
minister of the DRC, charging him with crimes against humanity and breaches of
the Geneva Conventions, arising from acts committed in the DRC. The warrant
was issued in terms of a Belgian law granting universal jurisdiction.

Decision:
The main judgment held that the minister was a diplomat and thus had
immunity; it did not speak about jurisdiction.
Conflicting Views:
The separate judgments had conflicting views:
1. IL does not recognise universal jurisdiction, with the exception of piracy.
2. There is nothing preventing the application of universal jurisdiction in
international law, including universal jurisdiction in absentia. However the
crime must be recognised under customary international law in order for this
jurisdiction to be sustained.
Pinochet Case:
A dictator committed torture and was wanted by several countries. He was
arrested in the UK and Spain applied for extradition. Extradition was granted, and
he was tried for crimes against humanity in Spain on the basis of universal
jurisdiction.
Eichmann Case:
A German Nazi in Argentina was abducted by the Israeli authorities and taken to
Israel to stand trial for genocide. The court exercised jurisdiction based on
universal jurisdiction. However by abducting him the Israeli authorities had
breached state sovereignty.
Conditional vs Absolute
Conditional: A state may only exercise jurisdiction where the accused is
present within the territory of the state.
Absolute: A state can exercise jurisdiction over a person not within their
territory.
SALC case (Southern African Litigation Centre and Another v National
Director of Public Prosecutions and Others 2012 (10) BCLR 1089 (GNP))
Facts:
The SA government refused to investigate or arrest Zimbabwe nationals for the
crime of torture, which was committed against Zim nationals, in Zim, by Zim
nationals.
Held:
SA has an international and a domestic obligation to investigate under the Rome
Statute and the ICC Act. As the Rome Statute was domesticated, if South Africa
failed to investigate it would be in breach of both its international and domestic
obligations.

Article 53 obliges a state to investigate if there is a reasonable suspicion that a

crime has been committed.

Immunities

and

International

Crimes
INTRODUCTION
The two forms of immunity
Sovereign immunity
Origin in the immunity of the person of the foreign sovereign from the jurisdiction
of domestic courts. Later the personification of the sovereign was replaced by
the abstraction of the state and its organs.

Sovereign immunity is guided by customary law.

Absolute vs restrictive (or qualified) approaches:

Abosolute:

Granted absolute immunity for all crimes and circumstances.

Therefore it was a blanket immunity.

Parlement Belge 1880

Confirmed principle of absolute sovereign immunity.

Also [Underhill].

States must respect the independence and dignity of another state.

Restrictive:

The advent of socialist states and state-owned trading altered this

absolutised principle.

Immunity from the jurisdiction of municipal courts will be granted in

respect of acts jure imperii (governmental public activities) and not
in respect of acts jure gestionis ( commercial activities).

Inter-Science Research and Development case 1980

Confirmed restrictive approach.
Held that this approach is a general rule of IL and so the court must apply it.
IL knows no rule of stare decisis therefore prior decisions upholding the
absolute approach do not have to be followed.

The position today

In order to determine whether immunity applies, a court must distinguish

between private or commercial acts and governmental activity. It looks at
two factors:

Nature of the act.

The function the act aims to fulfil.

Diplomatic and consular immunity

Granted to diplomatic officials.

NB: The embassy is not extra-territorial nor does the building become part of
the territory of the sending state.

Diplomatic Immunities and Privileges Act 37 of 2001

Enacted the two following conventions into national legislation.
Vienna Convention on Diplomatic Relations of 1961

Diplomatic immunity is necessary for diplomats to function and carry out

their duties.

The sending state can waive immunity of the official - if immunity is waived
then that official can face the jurisdiction of a muncipal court.

Granted to diplomatic missions and consular missions.

Vienna Convention on Consular Relations of 1963

IMMUNITIES AND INTERNATIONAL CRIMES

Must distinguish between civil and criminal proceedings; and between
international and national courts.
International courts: Principle of non-immunity (uniform practice)
National courts: No uniform practice (depends if the coutry domesticated the
Rome Statute)

Criminal proceedings
Functional and personal immunities
Personal: Atttaches to the the individual of a particular status.

Eg. Senior government officials.

Applies whilst the person is in office.

Provides complete immunity (including against international crimes)

Temporary: last only for as long as the person retains office.

Functional: Attaches to certain governmental functions performed by a

person.

Can apply both during and after office.

Current and former heads of state and government officials.

Cannot raise this immunity if the act breaches a jus cogen.

Therefore crimes that breach jus cogens are not granted immunity.

Pinochet (functional immunity in national courts)

Torture is an act which breaches a jus cogen norm; therefore this act cannot
be seen as an official act.
Anomalies:
A head of state is charged with torture, which violates a jus cogen:

Before national courts, the head of state can claim personal immunity.

However they cannot claim functional immunity for international crimes

before international courts.

International courts can set side personal immunity.

Arrest

Warrant

case,

ICJ

2002:

Immunity

for

incumbent

senior

government officials before national courts

Facts: Belgium court issued an arrest warrant for a acting foreign
minister.

Customary international law permits senior government officals to enjoy

immunity under international law before national courts, even in respect of
international crimes.

However the immunity will not last after the person has left office, for acts
committed prior or subsequent to the period of office, as well as in respect of
acts committed during that period of office in a private capacity

This immunity was necessary for the official to function and engage with
foreign governments.

No distinction can be drawn between acts performed by a minister of

foreign affairs in an official capacity and those performed in a private
capacity

Therefore this case extends personal immunity against acting senior officials
for international crimes before national courts.

However personal immunity for international crimes does not extend to

international criminal courts.

Notes:

Immunity ratione personae - attaches to a person because of his status or

office. Therefore no acting head of state can be subjected to the national
jurisdiction of a foreign state, whilst that person retains office, even in
respect of international crimes.

Immunity ratione materiae - attaches to official acts, performed during office

and can be invoked once that person leaves office. However national courts
have determined that such immunity does not exist where the act breaches a
jus cogen or constitutes an international crime, as that act can never be an
official act.

Who does immunity extend to?

What is the function of the official?

Does the official act as a representative of the State?

If yes - immunity

If no - no immunity. Eg. Minister of Education.

The question of immunity for Heads of State

Based on the Arrest Warrant case, current heads of state have immunity from
national courts for international crimes under customary international law.
Arts 27 & 98 of ICC Statute
Art 27:

Art 98(1):

Court will not proceed with a case if that state will have to breach its
international law obligations. Therefore this section recognises customary
international law recognising immunity.

However it places the state in a conflicting position - respect customary IL or

the Rome Statute. Following one will breach the other.

If the state is a UN Member, under Art 103 of the UN Charter the state is
obliged to give effect to the UN Charters obligations before any other treaty.

Prosecutor v Taylor (SCSL); Prosecutor v Al Bashir (ICC)

Section 4(2)(a) of ICC Act

s 4 of Diplomatic Immunities & Privileges Act - potential conflict in SA

law

This section grants immunity to acting heads of state from both the criminal
and civil jurisdictions of municipal courts.

Cf. ICC Act - Heads of state do not have immunity for international crimes in
domestic courts.

Civil proceedings
Reparations
Damages
Compensation
Absolute immunity in civil proceedings

Absolute immunity is granted to senior state officials even where the act
giving rise to the civil claim breaches a jus cogens.

Emerging restrictive approach to immunity in civil proceedings where a

jus cogens has been breached???

Current cases such as Jones 2004 show that a restrictive approach is

developing towards civil claims.

Therefore it would no longer be appropriate to grant immunity for violations

of jus cogens.

Germany v Italy (ICJ)

Held that the restrictive approach to state immunity in civil claims for violations
of jus cogens has not become customary law.

Therefore cannot conclusively say that the restrictive approach applies in IL.

The United Nations

INTRODUCTION TO THE UN
Be able to explain the powers of the UN in relation to peace and security
(broadly); military intervention (narrow); AU - peace and security; military
intervention; analyze both the UN and the AU powers and describe any conflict
between the two.

Establishment, Purposes and Principles of the UN

The UN was established in 1945.

Its main purpose is the maintenance of peace and security

Art 1 & 2 of UN Charter

Article 1
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats
to the peace, and for the suppression of acts of aggression or other
breaches of the peace, and 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;
2. To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems
of an economic, social, cultural, or humanitarian character, and in
promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment
of these common ends.
Article 2: The Principles of the UN
The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of
all its Members.
2. All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means

in such a manner that international peace and security, and justice, are
not endangered.
4. All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action
it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking
preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the
United Nations act in accordance with these Principles so far as may be
necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter Vll.

UN structure / Introduction to its principal organs

General Assembly
Deliberative organ of the UN - it discusses policies, maintenance of peace
and other international matters.

(see organizational chart)

Membership:
193 states.
South Africa was a founding member of the UN, but was suspended during
the 1970s until 1994.
Voting in the Security Council and the General Assembly
General Assembly
Art 18 & 19:

Each member has one vote.

To pass a resolution, there needs to be a two thirds majority of sitting

members.

Security Council

Article 23: The SC has 15 members, 5 permanent and 10 non-permanent.

A retiring member is not available for immediate re-election.

Article 27: Procedure of Voting

Note: There are 15 members now, so 9 affirmative votes are required, not 7.

The permanent members often use their veto votes.

Double veto: The permanent members can decide whether something is a

procedural matter or substantive matter.

The permanent members can threaten to veto a decision, or veto on behalf

of other states.

Reverse veto: The SC ordered an intervention, and the permanent members

can prevent the action from stopping through veto.

Article 108: Need the permission of the permanent members of the SC to

amend the Charter.

General
Assembly

Security
Council

Economic
&
Social
Council

Main deliberative, policymaking & representative organ

Secondary responsibility maintenance of international peace
Meets annually in ordinary session
Comprises 193 members
Executive body of the UN
Primary responsibility maintenance of international peace &
security
Comprises 15 members (5 permanent members China, France,
Russia, UK & USA; & 10 non-permanent members elected by GA for
2 years - SA (2007-2008 & 2011-2012)
Presidency of SC on a 1 month rotational basis)
Takes decisions binding on all members states
Coordinates economic, social & related work of the specialized
agencies, which work on a particular issue
Comprises 54 members

Secretaria
t

Day to day work of UN

Services other organs & administers programmes
Ban Ki-Moon, Current SG Korean
Trusteeship Council: supervises administration of trust territories
(suspended in 1994)

Internatio
nal Court
of Justice

Main judicial organ

15 full time judges (also has ad hoc judges)
Only States can be parties to cases
Supervises administration of trust territories (suspended in 1994)

Trusteeshi
p Council

UN & THE MAINTENANCE OF PEACE

With whom does primary & secondary responsibility for
maintenance of peace lie?

The primary responsibility of the maintenance of peace lies with the SC: Art
24

The secondary responsibility of the maintenance of peace lies with the GA:
Art 10

If the matter is already being dealt with by the SC, the GA cannot make
any recommendations in regard to it.

However this does not preclude the GA from requesting an advisory

opinion from the ICJ.

Further the GA is precluded from taking any enforcement action against a

delinquent state; it must refer the matter to the SC where action is
necessary.

Uniting for Peace Resolution

The GA has responsibility for peace initiatives.

Powers of the Security Council in relation to international

peace
Must distinguish between Ch VI and Ch VII powers
Chapter VI (arts 33-38)

See print-out p8.

These are recommendations made by the SC for the peaceful settlement of

disputes which have the potential to breach the peace.

There is an argument that Ch VI recommendations are not binding as the text

refers to recommendations.

Namibia Opinion
The court had to decide whether a SC resolution, in which the SC declared SAs
continued presence in Namibia to be illegal, was a legally binding decision under
Art 25, despite the fact the it was not preceded by a finding under Art 39, and
thus clearly did not fall under Ch VII.
Held: Recommendations made under Ch VI could be binding based on the
language and context - where the recommendation was intended to be
binding under Art 24.

Any UN member can bring a situation to the attention of the SC.

The SC has the power to investigate disputes and situations that are likely to
endanger international peace: Art 34

The SC can call upon States to settle peacefully.

The SC can recommend appropriate mprocedures and measures for

settlement: Art 36

Chapter VII

These are SC decisions which are made in relation to breaches of the peace.

Triggering action under Chapter VII

Art 39

There is no clear definition of what constitutes a threat to the peace - the

determination is heavily dependent on politics.

There is no consistency as sometimes internal violations of human rights

have been defined as threats to the peace, whilst in other situations the SC
requires that the dispute involve two states.

Example: In Libya and Somalia there were internal violations of human rights;
the SC defined these as threats to the peace.

Provisional measures
Art 40

If the failure to comply with these provisional measures arises, the SC can
take action that does not involve the use of force first, then if that fails, it can
take forcible measures.

Non-forcible measures
Art 41

Forcible measures
Art 42

No-one controls the SC.

Lockerbie Case ICJ

Q: Whether UN resolutions are compatible with IL.
Held: UN resolutions take priority over other agreements.

AU & ITS PEACE & SECURITY ARCHITECTURE

Established as the OAU originally.
AU established in 2000 but fully replaced the OAU in 2002.
Membership of 54 states in Africa, excluding Morocco.

Objectives and principles of AU in relation to peace &

security
Art 3 & 4 of AU Constitutive Act

These are the purposes and principles of the AU.

Purposes/Objectives:Art 3
The objectives of the Union shall be to:
(a) achieve greater unity and solidarity between the African countries and the
peoples

of

Africa;

(b) defend the sovereignty, territorial integrity and independence of its Member
States;

(c) accelerate the political and socio-economic integration of the continent;

(d) promote and defend African common positions on issues of interest to the
continent

and

its

peoples;

(e) encourage international cooperation, taking due account of the Charter of the
United
(f)

Nations

and

promote

the

peace,

Universal

security,

Declaration

and

of

stability

Human

on

the

Rights;

continent;

(g) promote democratic principles and institutions, popular participation and

good

governance;

(h) promote and protect human and peoples' rights in accordance with the
African Charter on Human and Peoples' Rights and other relevant human rights
instruments;
(i) establish the necessary conditions which enable the continent to play its
rightful

role

in

the

global

economy

and

in

international

negotiations;

(j) promote sustainable development at the economic, social and cultural levels
as

well

as

the

integration

of

African

economies;

(k) promote co-operation in all fields of human activity to raise the living
standards

of

African

peoples;

(l) coordinate and harmonize the policies between the existing and future
Regional Economic Communities for the gradual attainment of the objectives of
the Union;
(m) advance the development of the continent by promoting research in all
fields,

in

particular

in

science

and

technology;

(n) work with relevant international partners in the eradication of preventable

diseases and the promotion of good health on the continent.
Principles:
The

Union

shall

function

in

accordance

with

the

following

principles:

(a) sovereign equality and interdependence among Member States of the Union;
(b)

respect

of

borders

existing

on

achievement

of

independence;

(c) participation of the African peoples in the activities of the Union;

(d) establishment of a common defence policy for the African Continent;
(e) peaceful resolution of conflicts among Member States of the Union through
such

appropriate

means

as

may

be

decided

upon

by

the

Assembly;

(f) prohibition of the use of force or threat to use force among Member States of
the

Union;

(g) non-interference by any Member State in the internal affairs of another;

(h) the right of the Union to intervene in a Member State pursuant to a decision
of the Assembly in respect of grave circumstances, namely: war crimes, genocide
and

crimes

against

humanity;

(i) peaceful co-existence of Member States and their right to live in peace and
security;
(j) the right of Member States to request intervention from the Union in order to
restore
(k)

peace

promotion

(l)

of

and

self-reliance

promotion

within

the

of

security;

framework

of

the

gender

Union;
equality;

(m) respect for democratic principles, human rights, the rule of law and good
governance;
(n) promotion of social justice to ensure balanced economic development;
(o) respect for the sanctity of human life, condemnation and rejection of impunity
and

political

assassination,

acts

of

terrorism

and

subversive

activities;

(p) condemnation and rejection of unconstitutional changes of governments.

The Peace and Security Council of the AU
Protocol relating to the Establishment of the Peace & Security Council
of the AU, 2002
Membership: Art 5

Voting: Art 8

Powers: Art 7

 The AU has an African Standby Force which includes military observers.

Continental Early Warning System: captures data on potential conflict areas.
Panel of Wise: Five personalities which advise the AU SC.
Peace Fund: Funds for peacekeeping.
Regional bodies such as SADC can help the AU in its missions.
Examples of regional intervention by the AU

Burundi
AU deployed a peace force in Burundi for one year, pending the arrival of the UN
peacekeeping forces. After 14 months the AU force was officially absorbed into
the UN force. The operation was considered successful.
Sudan
Deployed a peacekeeping force in Sudan to oversee the ceasefire. The number of
troops was insufficient and the UN had to intervene. It was not entirely successful
as the force did not have the mandate to protect civilians, as well as severe
financial constraints.
Somalia
Was only able to send a very limited force to the region due to financial
constraints, transport and equipment. It had a 6 month mandate based on the
Burundi model. It was supposed to create the conditions necessary for the
withdrawal of Ethiopian troops from Somalia.

The AU does not have sufficient resources to carry out sustained independent
missions.

It focuses on peaceful settlement and not on military intervention.

Many African states look towards Nigeria and South Africa for decision
making.

AU focuses on negotiations which include the disputing parties.

Africa has enormous experience in the resolution of civil wars. African experience is that wars are ended
through political negotiation. Military intervention, with either the stated or unstated object of regime change or
(its counterpart) total defeat of an insurgency, does not end conflicts, but at best mutates them and at worst
escalates them. The African Union is not averse to using forceit typically is the first responder in the most
difficult situations such as Darfur, Somalia and Mali. But African practice underscores the importance of using
force in support of a political-diplomatic strategy, not as an alternative to one.
African experience has contributed to a number of guiding principles for conflict resolution, notably an
insistence on all stakeholders being involved in negotiating a settlement. Were the Syrian conflict taking place
on the African continent, all the neighbors would be engaged in a forum seeking a settlement.

RELATIONSHIP

BETWEEN

THE

UN

AND

REGIONAL

ARRANGEMENTS
The main regional arrangements
a) OAS
b) AU
c)

EU

d) Arab League

Chapter VIII
Art 52-54
See print-out p12.
Potential

conflict

between

art

4(h)

of

AU

Constitutive

Act

and

requirements under UN Charter/art 53 of UN Charter???

Art 4(h) AU Constitutive Act
(h) the right of the Union to intervene in a Member State pursuant to a decision
of the Assembly in respect of grave circumstances, namely: war crimes, genocide
and crimes against humanity;

Art 53 UN Charter

Art 53 provides that no enforcement action shall be taken under regional

arrangements or by regional agencies without the authorisation of the SC.
Thus if the AU takes enforcement action before obtaining the consent of the
SC, it might be acting in conflict with the Charter requirements.

Chapter VIII UN Charter

Article 52.

Recognises the existence of regional arrangements and they have a role

in peace and security.

States must first make use of regional arrangements before approaching

the UN, for settling disputes.

Regional arrangements are important.

Article 53(1)

The UN SC planned to establish a permanent UN security force - however

this never materialised - Uses regional forces such as NATO in terms of
intervention

Prohibits enforcement action by regional arrangements unless they

acquire UN SC authorisation permitting such action..

Problems: If the AU acts under s4(h) of the Constitutive Act, intervening

in States, without UN authorisation?
UN requires that the regional body must first seek authorisation for
any intervening action. - Art 53(1) - Need SC approval.
Potential conflict - does the AU need to get UN approval for every
little action?
Under Art 54, regional bodies must keep the UN informed of any
regional action.

 Can limit their ability in performing their task (AU), if they are
constantly subject to the UN SC approval.
Recall Art 103 - Charter obligations take priority over all other
obligations ( such as AU Act) - the AU member states (who form part
of the UN) then must get UN SC approval.
Art 17 Peace and Security Council Protocol - clearly acknowledges
that the SC has primary responsibility for peace and security. AU
acknowledges the role of the UN. Art 16 - Regional mechanisms have
primary responsibility in promoting peace in Africa - CONFLICT. AU
has primary responsibility on the continent; but seen through IL - the
UN has primary responsibility.
Art 17:Peace and Security Council Protocol

Art 16: Peace and Security Council Protocol

Discussing around reforming the UN.

Common document of the AU
Holds that regional action needs SC approval; however action that
needs immediate action can be taken without SC approval. The
AU needs only notify the SC. However this may not mean that the
AU is seeking approval.

Subregional Arrangements:
Does these principles include sub-regional arrangements? Eg
SADC, ECOWAS.
Do these bodies need regional approval or SC approval?
SC is the only body that can grant approval as only it can authorise

the use of force.

ECOWAS
ECOWAS has acted in Sierre Loene without SC approval. This is illegal as it did
not get prior approval by the UN SC. However the SC through resolutions,
retrospectively authorised the action.

Thus sub-regional bodies have acted without prior approval.

General rule: The use of force needs prior UN SC approval

Be able to explain the role of the peace and security council; also be able to cite
the provisions

Use of Force by States

LEGALITY OF WAR: GENERAL PRINCIPLES
Prior to 1928

Use of force was not prohibited.

War was not prohibited.

Doctrine of just war: War was permitted and justified under the following
rationales

Divine will.

Punish wrongs - use a war to punish a wrongdoing.

1924 - Convenant of the League of Nations:

Similar to the UN charter.

It only included procedural constraints on going to war; war was not

prohibited.
Members had to submit disputes to arbitration or judicial settlement eg. PCIJ.
Even if the decision is reached, the states needed to wait for three
months before going to war. This delayed the process of going to war.
It also gave an opportunity for the state to implement the decision. If
the state complied with the decision, the opposing state could not go
to war.
Discouraged war-making (in theory).

After 1928
War could not be used to punish wrongdoers.
Pact of Paris/ Kellogg-Briand Pact/ General Treaty for the Renunciation of War.
(NB)
Kellogg-Briand Pact: War cannot be used as an instrument of national policy.
Kellogg-Briand Pact

Renounced war.

Could not use war as an instrument of national policy.

Required states not to resort to war for the resolution of disputes.

Settle disputes exclusively by peaceful means.

Reserved the right of self-defence and collective self-defence.

However the treaty did not address mechanisms for collective selfdefence or collective resolution of disputes.

SA party to this treaty.

Art 2(4) of UN Charter

Art 2(4) UN Charter prohibits the threat and use of force against the
territorial integrity or political independence of any state
Prohibits the threat and the use of force.(NB)
Against the terrritorial integrity or political independence of a state.
Nicaragua
ICJ confirmed that the prohibition on the use of force is a rule of customary IL.
Accepted as a jus cogens.
Art 51 & CH VII (UN SC Authorisation)
Collective self-defence or individual self-defence.

Exception to the use of force

Art 4(f) & (h) of AU Constitutive Act

(f) prohibition of the use of force or threat to use force among Member States of
the Union.
(h) the right of the Union to intervene in a Member State pursuant to a decision
of the Assembly in respect of grave circumstances, namely: war crimes, genocide
and crimes against humanity;
s 200(2) of SA Constitution

When the defence force acts it must do so in terms of IL regulating the use of
force.
s 2(c) of Defence Act

Same point. - needs to act in accordance with IL regulating the use of force.

FORMS OF PROHIBITED FORCE

Is prohibition in art 2(4) limited to armed' force? Is indirect
use of force outlawed?
Declared war or undeclared war - it doesnt matter.
The word Force covers situations that do not amount to war as such.
The use of the word force is restricted to international relations which affect
international peace and security. This entails force across boundaries
between two or more states. (not Marikana situations of internal unrest)
IL does not prohibit suppression of internal revolutions.
Expanded in 1970 Declaration on Principles of IL:
Limits of the UN Charter
General

Assembly Declaration on Principles of International

Concerning

Friendly

Relation

and

Co-operation

among

Law

States

in

accordance with the Charter of the United Nations (1970)

The use of force cannot be used to deprive people of their right to selfdetermination.
Force cannot be used to deprive people of their right to self-determination

Limited to armed forces or does it go beyond?

Economic force

Economic

sanctions

which

threaten

the

sovereignity,

territorial

integrity or political independence of the state.

Art 46 UN Charter

Uses armed and the same word in the preamble armed Traditional narrow view holds that only armed forces are covered
by the prohibition.

 Contemporary view: All forces, including economic, that can break the
territorial integrity or political sovereignity of the state are prohibited.
However this view is not supported.
Economic sanctions could breach Art 2(4) rather than 46.
1970 Declaration on Principles of International Law

Cannot use economic measures to breach the sovereignity of a state.

Prohibits the use of economic measures to coerce another state in order to

obtain from it subordination of the exercise of its sovereign rights
South Africa during Apartheid
Use of force under Art 2(4)?

Only illegal if the use of the force is intended to breach the soverignity of the
state.

Use of economic sanctions was only used to correct a wrong that was already
perpetrated, which was contrary to the UN charter.

The sanctions were intended to enforce compliance with the principles of the
UN Charter.

Nicaragua:
Facts:

USA refused to give economic aid to Nicaragua and placed trade embargos
on the state.

Held:ICJ

The economic sanctions and trade embargos do not breach principle of nonintervention or Art 2(4).

Indirect force
National liberation movements.
Encouraging the organisation of armed bands for incursion into the territory
of another state is prohibited use of force.
If the state exercises control over the rebels, state attribution occurs for the
acts of the rebels.
Confirmed in:
Nicaragua:
Held: The USA had violated the prohibition on the use of force by arming and
training rebels but not by supplying funds to rebels.
1970 Declaration on Principles of International Law

The prohibition on the use of force does not extend to supporting the armed
bands of a national liberation movements seeking self-determination. These
national liberation movements therefore can be supported. However if the
rebels are fighting against another state - prohibition applies.

Other UN Resolutions
States should not permit non-state entities from operating from their territory in
committing terrorist acts against another state.

PERMISSIBLE USE OF FORCE

Two circumstances of permitted force
1. UN SC authorisation
a) Ch VII.
b) Article 53.
2. Article 51: Collective and individual self-defence.
a) Collective and individual self-defence.
b) If UN steps in - must stop self-defence.
Permissible use of force under authorisation of the UN

Art 39.
1. Adopt provisional measures.
2. Non-forcible measures.
3. Forceable measures.
See above chapter under Ch VII and Art 53.

Permissible use of force without authorisation of the UN

Self-defence.
Anticipatory self-defence, pre-emptive and preventive action.
Self-defence and the accumulation of events.
Hot Pursuit.
Self-defence against terrorism.
Defence of nationals.
Collective self-defence.
Intervention in civil strife and civil wars.
Wars of national liberation.

Individual SELF-DEFENCE
Definition
Lawful reaction to an armed attack.
Requirements: Customary law
An action taken in self-defence to be an immediate and necessary
response to a situation threatening the states security and vital
interests.
The response must be kept within the bounds of proportionality.

Self-defence in customary international law

Right to self defence in customary IL.
Existed under customary IL before Art 51.
Caroline case
Case between US and UK. Situation in which an American ship had been
destroyed by the UK, as the UK suspected that the ship was being used to carry
rebels to the Canadian territories.
Held:
For the UK to prove:
1. Prove necessity of the action. The UK was to show that there was an instant
and overwhelming attack, leaving no choice of means and no moment for
deliberation.
2. Reasonable and not excessive response to the attack.
Other case law:
3. Immediate.
4. Necessary.
5. Proportionality.
a) These are factors used to assess the force used.
6. Situation that threatens the security and vital interests of the state.
Legality of the threat of the use of nuclear weapons

Necessity and proportionality are very important. It is a rule of customary

rule, inherent in the law.

UN Charter art 51
Art 51 UN CHarter

Therefore under the Charter, for a state to resort to self-defence, it must be

able to show that it has been a victim of an armed attack.
The article includes the word inherent right: there are two views about what
this means:

Article 51 is a complete and exclusive formulation of the right of selfdefence.

Inherent right refers to the customary law right of self-defence, therefore

Art 51 is not an exhaustive formulation of the right but preseves the preCharter customary right. [Nicaragua]

Art 51 provides the only escape from the prohibition on the use of force;
therefore it has been interpreted widely
Armed attack of such magnitude (gravity) that there are no other means of
defence, permits the use of self-defence.
Not every act constituting an unlawful use of force constitutes an armed
attack. [Nicaragua; Oil Platforms]
Nicaragua case

Armed Attack: Not limited to attacks by regular armed forces; an armed

attack can include non-regular forces.

Right to self-defence is an inherent right derived from customary law.

Conditions in Legality of the Threat or use of Nuclear Weapons

Confirmed the Nicaragua decision.
Held:
The right of self-defence granted in Art 51 is constrained by the conditions of
necessity and proportionality, taken from customary international law.
Example
Bombing of an embassy and diplomats killed:
Does that give the right to act in self-defence? - Threatens the security and the
vital interests of the state - yes, gives the right.
Non-state entities which are supported or allowed to operate in another state
(state attribution) - covered by the provisions - can act in self-defence against
these entities.

ANTICIPATORY SELF-DEFENCE

The words anticipatory, pre-emptive and preventive are sometimes used

interchangeably. However each term has its own meaning.

Non- legal anticipatory self-defence rationales lie in the fact that it would be
naive for a state to wait for an attack in order to respond, as many modern
weapons are capable of mass destruction.

Legal arguments also rely on the wording of Art 51: the article does not
explicity preclude self-defence as it refers to the inherent right of selfdefence. This could include the old customary law right of anticipatory selfdefence.

Definition
Anticipatory:
The use of force against an attack that is imminent and foreseeable.

The state is not yet a victim of an attack.

The only way to deflect that imminent attack is through the use of force.

Pre-emptive:

Removed the requirement of imminent.

A state need only show a possibility of an armed attack.

This is highly speculative - no exact time or place of the attack.

Preventive:

Action taken against a non-imminent and non-proximate threat.

Therefore there is no possibility of an attack at all.

Historical attempts to use anticipatory self-defence

Israel: 1967
Israel attacked Egypt as the Egyptian military was mobilizing around Israels
borders. Therefore an attack seemed imminent and foreseeable.
Anticipatory self-defence.
Israel: 1981
Israel bombed and destroyed a nuclear reactor in Iraq. There was no evidence
that a nuclear attack was imminent, however there was a possibility that Iraq
would use the technology against Israel.
Pre-emptive action.
Invasion of Iraq (2003) / UN SC Resolutions 678 (1990), 687 (1991);
1441 (2002)
The USA, UK, Australia and 45 other states combined to invade Iraq and destroy
nuclear weapons. There was no UN SC authorisation for the action. However
when the forces invaded, no evidence of nuclear weapons was found.
Pre-emptive action as there was only a possibility of the weapons being in
Iraq.
This action is generally held to be a violation of the UN Charter and illegal.

The USA argued that it was acted lawfully under self-defence.

The UK argued that on an interpretation of three SC resolutions, these

prior resolutions gave the UK authorisation to invade Iraq:

Arguments in support of anticipatory self-defence

ICJ decision in Nicaragua case
Article 51 preserves the inherent right of self-defence. Therefore Art 51 can

be interpreted as supporting anticipatory self-defence

Secretary-General High Level Panel on Threats, Challenges and Change
(Soft Law)
Gave approval to anticipatory self-defence.
Conditions:

The attack must be imminent,

There are no other means to deflect it,and

The action is proportionate.

Thus a state may act pre-emptively against an imminent or

proximate threat, but it cannot act preventively without UN SC approval.

Problems:

Acknowledges that states can act pre-emptively to a proximate and

imminent threat.
This definition merges the requirements for anticipatory self-

defence and pre-emptive self-defence definitions.

Legal Consequences of the Construction of a Wall in the Occupied
Palestine Territory
Held:
The construction of a security wall in Palestinian territory could not be justified
on the grounds of self-defence against possible attacks by Palestinian militants.
Did not give support to pre-emptive or preventive self-defence.
Armed Activities in the territory of the Congo
Rejected the claims by Uganda that it had intervened in the DRC in self-defence.
Ugandas actions were preventative and Art 51 does not allow the use of force by
a state to protect perceived security interests.
Cross-border guerrilla raids
Whether a state that is subjected to a series of cross-border guerrilla raids from a
neighbouring territory, is entitled to retaliate in self-defence. Each attack is too
small to constitute an armed attack. The state does not react to each attack, but
waits to launch an attack on the guerrilla bases.
The purpose of the attack is protective - to protect the target state against
further predictable attacks.

A state cannot act in self-defence against an accumulation of events in this

manner without UN SC authorisation.

Reprisal action
Reprisal action is taken against a state that does something illegal. This form of
self-defence is illegal under Art 2(4) as it is punitive in nature.
Hot pursuit
The pursuit and arrest of armed bands across borders.

Hot pursuit is illegal on land as it results in a violation of the territorial

integrity of another state.

However hot pursuit is legal under the law of the sea.

Self-defence against terrorism

Invasion of Afghanistan (2001) / UN SC Resolutions 1368 (2001), 1373
(2001)
Objections and responses:

DEFENCE OF NATIONALS
The right and what it relates to
Examples

HUMANITARIAN INTERVENTION
Ambiguous in international law
The position prior to and post 1945/today
Intervention in Yugoslavia (1999)
Responsibility to Protect: R2P
Intervention in Libya (2011)
Intervention in Syria???

COLLECIVE SELF-DEFENCE
Collective security vs collective self-defence
The conditions
Intervention in civil strife and civil war
Wars of national liberation

International Humanitarian Law

A. CONTEXTUALISING INTERNATIONAL HUMANITARIAN LAW
1. Jus ad Bellum v Jus in Bello
2. Definition of international humanitarian law
B. SOURCES AND SCOPE OF INTERNATIONAL HUMANITARIAN LAW
1. Application of principles of international humanitarian law
2. History of the development of international humanitarian law
3. Relevant international humanitarian law treaties and custom
a. Geneva Convention on Amelioration of the Condition of the
Wounded in Armies in the Field 1864
b. Law of the Hague (Hague treaties of 1899 and 1907 Laws and
customs of war)
Prohibition of weapons that cause unnecessary suffering -

the Conventions
Nuclear weapons - - the treaties; South Africas attitude
towards nuclear weapons; Legality of the Threat or Use of

Nuclear Weapons 1996 ICJ & criticism; Rome Statute (art 8)

c. Law of Geneva (Geneva Conventions & Protocols, 1949 & 1977
protection of persons from effects of armed conflict)
C. GENERAL PRINCIPLES OF HUMANITARIAN LAW
1. Combatants vs Civilians
2. Prisoners of war
3. Regular and irregular forces
4. Treatment of civilians and others in occupied territories
5. Who and what may be targeted in an attack?
6. International vs Internal (non-international) conflict
a. Definition & distinction - - Tadi ICTY; art 1(4) of Additional
Protocol I
b. National Liberation Movements
c. Non-international - - Common art 3; Additional Protocol II on
Protection of Victims of Non-International Armed Conflicts & the
difference between the two
d. International Geneva Conventions and AP I on the Protection of
Victims of International Armed Conflicts
Application of distinction in terms of post-conflict punishment; ICC
Statute are