Public International Law Bokks 1 To 21 Chap-1 PDF

LECTURES ON
PUBLIC INTERNATIONAL
LAW
Prof. Vijay Ghormade

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TABLE OF INDEX
Preface and Acknowledgement
Chapters
1) Concept, Nature & Basis Of Public International Law 2-9
2) Origin And Historical Development Of Public International Law 10-18
3) Sources And Evidence Of International Law 19-22
4) Custom As A Source Of International Law 23-29
5) Treaties As Source Of International Law 30-36
6) General Principals of law as Recognized by Civilized State 37-40
7) Subsidiary Or Other Sources Of International Law 41-51
8) Interface Between Municipal And International Law 52-63
9) Subjects of International Law 64-87
10) State Territory and Territorial Sovereignty 88-130
11) Diplomatic Law 131-145
12) State Responsibility 146-157
13) Law of Treaties 158-165
14) Peaceful Settlement of International Dispute 166-182
15) Law Of War And Threat Or Use Of Force 183-213
16) International Criminal Law 214-238
17) International Human Rights Law 239-262
18) Law of International Institutions 263-274
19) United Nations Charter 275-302
20) International Humanitarian Law 303-313
21) Leading Cases on Public International Law 314-335
Prof. Vijay Ghormade: Public International Law

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CHAPTER 1
CONCEPT, NATURE & BASIS OF PUBLIC INTERNATIONAL

LAW
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(A) CONCEPT OF INTERNATIONAL LAW
Definitions of International Law

Public International Law is the law of nation-states. Public International Law is sometimes called
the "law of nations" or just simply International Law. Public international law concerns the
structure and conduct of states and international organizations. To a lesser degree, international
law also affects multinational corporations and individuals. The impact is increasingly evolving
in domestic legal interpretation and enforcement. Public international law has increased in use
and importance vastly over the twentieth century, due mainly to the increase in global trade,
armed conflict, environmental deterioration on a worldwide scale, human rights violations, rapid
and vast increases in international transportation and a boom in global communications.
Public International Law is composed of the laws, rules, and principles of general application
that deal with the conduct of nation states and international organizations among themselves as
well as the relationships between nation states and international organizations with persons,
whether natural or juridical. It is a distinct and self-contained system of law, independent of the
national systems with which it interacts, and dealing with relations which they do sometimes
effectively govern and sometime not. Since there is no overall legislature or law-creating body
in the international political system, the rules, principles, and processes of international law must
be identified through a variety of sources and mechanisms. This can make international law not
very visible as compared to domestic legal system. The customary practices and international
treaties are the main stuff of the international law and decisions of the international court is the
evidence of the law. In the United States often Restatement of the Law (Third) and the Foreign
Relations of the United States referred as a guide to identifying international law as applied in
the US.
The Oxford English Dictionary defines International law as the law of nations, under which
nations are regarded as individual members of a common polity, bound by a common rule of
agreement or custom; opposed to municipal law, the rules binding in local jurisdictions.
American Restatement1 defines International Law consists of rules and principles of general
application dealing with the conduct of states and of international organizations and with their
relations inter se, as well as with some of their relations with persons, whether natural or
1
ALI Restatement 3rd Section 101

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juridical. In its most general sense, international law consists of rules and principles of general
application dealing with the conduct of states and of international organizations and with their
relations inter se, as well as with some of their relations with persons, whether natural or
juridical. International is thus a body of legal rules, norms, and standards that apply between
sovereign states and other entities that are legally recognized as international actors.
Bentham is the first one to use the term international law

‗The Law of Nations‘ was the term in use before English philosopher Jeremy Bentham (1748–
1832). The term ‗International Law‘ for the first time was used by him. While coining the term
‗international‘ Bentham thought the basic elements of international law include sovereignty,
recognition (which allows a country to honor the claims of another), consent (which allows for
modifications in international agreements to fit the customs of a country), freedom of the high
seas, self-defense (which ensures that measures may be taken against illegal acts committed
against a sovereign country), freedom of commerce, and protection of nationals abroad.
International courts, such as the International Court of Justice, resolve disputes on these and
other matters, including war crimes.
(B) NATURE & SCOPE OF PUBLIC INTERNATIONAL LAW
According to Bentham‘s classic definition, international law is a collection of rules governing

relations between states. It is a mark of how far international law has evolved that this original
definition omits individuals and international organizations—two of the most dynamic and vital
elements of modern international law. Furthermore, it is no longer accurate to view international
law as simply a collection of rules; rather, it is a rapidly developing complex of rules and
influential—though not directly binding—principles, practices, and assertions coupled with
increasingly sophisticated structures and processes. In its broadest sense, international law
provides normative guidelines as well as methods, mechanisms, and a common conceptual
language to international actors—i.e., primarily sovereign states but also increasingly
international organizations and some individuals. The range of subjects and actors directly
concerned with international law has widened considerably, moving beyond the classical
questions of war, peace, and diplomacy to include human rights, economic and trade issues,
space law, and international organizations. Although international law is a legal order and not an
ethical one, it has been influenced significantly by ethical principles and concerns, particularly in
the sphere of human rights.
International law is distinct from international comity, which comprises legally nonbinding
practices adopted by states for reasons of courtesy (e.g., the saluting of the flags of foreign
warships at sea). In addition, the study of international law, or public international law, is
distinguished from the field of conflict of laws, or private international law, which is concerned
with the rules of municipal law—as international lawyer‘s term the domestic law of states—of
different countries where foreign elements are involved.

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International law is an independent system of law existing outside the legal orders of particular
states. It differs from domestic legal systems in a number of respects. For example, although the
United Nations (UN) General Assembly, which consists of representatives of some 200
countries, has the outward appearances of a legislature, it has no power to issue binding laws.
Rather, its resolutions serve only as recommendations—except in specific cases and for certain
purposes within the UN system, such as determining the UN budget, admitting new members of
the UN, and, with the involvement of the Security Council, electing new judges to the
International Court of Justice (ICJ). Also, there is no system of courts with comprehensive
jurisdiction in international law. The ICJ‘s jurisdiction in contentious cases is founded upon the
consent of the particular states involved. There is no international police force or comprehensive
system of law enforcement, and there also is no supreme executive authority. The UN Security
Council may authorize the use of force to compel states to comply with its decisions, but only in
specific and limited circumstances; essentially, there must be a prior act of aggression or the
threat of such an act. Moreover, any such enforcement action can be vetoed by any of the
council‘s five permanent members (China, France, Russia, the United Kingdom, and the United
States). Because there is no standing UN military, the forces involved must be assembled from
member states on an ad hoc basis.
International law is a distinctive part of the general structure of international relations. In

contemplating responses to a particular international situation, states usually consider relevant
international laws. Although considerable attention is invariably focused on violations of
international law, states generally are careful to ensure that their actions conform to the rules and
principles of international law, because acting otherwise would be regarded negatively by the
international community. The rules of international law are rarely enforced by military means or
even by the use of economic sanctions. Instead, the system is sustained by reciprocity or a sense
of enlightened self-interest. States that breach international rules suffer a decline in credibility
that may prejudice them in future relations with other states. Thus, a violation of a treaty by one
state to its advantage may induce other states to breach other treaties and thereby cause harm to
the original violator. Furthermore, it is generally realized that consistent rule violations would
jeopardize the value that the system brings to the community of states, international
organizations, and other actors. This value consists in the certainty, predictability, and sense of
common purpose in international affairs that derives from the existence of a set of rules accepted
by all international actors. International law also provides a framework and a set of procedures
for international interaction, as well as a common set of concepts for understanding it.
Public international law establishes the framework and the criteria for identifying states as the
principal actors in the international legal system. As the existence of a state presupposes, control
and jurisdiction over territory, international law deals with the acquisition of territory, state
immunity and the legal responsibility of states in their conduct with each other. International law

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is similarly concerned with the treatment of individuals within state boundaries. There is thus a
comprehensive regime dealing with group rights, the treatment of aliens, rights of refugees,
international crimes, nationality problems, and human rights generally. It further includes the
important functions of the maintenance of international peace and security, arms control, the
pacific settlement of disputes and the regulation of the use of force in international relations.
Even when the law is not able to stop the outbreak of war, it has developed principles to govern
the conduct of hostilities and the treatment of prisoners. International law is also used to govern
issues relating to the global environment, the global commons such as international waters and
outer space, global communications, and world trade.
Whilst municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts
binding legislation), international law is horizontal in nature. This means that all states are
sovereign and theoretically equal. As a result of the notion of sovereignty, the value and
authority of international law is dependent upon the voluntary participation of states in its
formulation, observance, and enforcement. Although there may be exceptions, it is thought by
many international academics that most states enter into legal commitments with other states out
of enlightened self-interest rather than adherence to a body of law that is higher than their own.
As D. W. Greig notes that international law cannot exist in isolation from the political factors
operating in the sphere of international relations.2
Breaches of international law raise difficult questions for lawyers. Since international law has no
established compulsory judicial system for the settlement of disputes or a coercive penal system,
it is not as straightforward as managing breaches within a domestic legal system. However, there
are means by which breaches are brought to the attention of the international community and
some means for resolution. For example, there are judicial or quasi-judicial tribunals in
international law in certain areas such as trade and human rights. The formation of the United
Nations, for example, created a means for the world community to enforce international law
upon members that violate its charter through the Security Council.
Traditionally, states and the Holy See were the sole subjects of international law. With the
proliferation of international organizations over the last century, they have in some cases been
recognized as relevant parties as well. Recent interpretations of international human rights law,
international humanitarian law, and international trade law e.g., North American Free Trade
Agreement (NAFTA) have been inclusive of corporations, and even of certain individuals.
(C) IDENTIFICATION OF SOURCES OF INTERNATIONAL LAW
The Charter of the United Nations establishes the International Court of Justice (ICJ) as the
principal judicial organ of the UN. The treaty which establishes the ICJ is informally known as
2
Greig, D. W., International Law, 2nd edn (Butterworth: London, 1976)

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the ―Statute". Article 38 of this "Statute" furnishes an indirect answer to the question: What are
the texts of international law? In fact, the article is drafted in terms of what sources the court will
use in order to resolve a dispute. These sources include treaties, customary law, and general
principles of law, case law and writings of highly qualified publicists. Article 38 reads:
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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto."
(D) INTERNATIONAL LEGAL THEORY
Natural law
The intellectual seeds of modern international law germinated in the 16th and 17th centuries,
when the influence of the Roman Catholic Church in international affairs gradually weakened.
Many early international legal theorists were concerned with axiomatic truths thought to be
reposed in natural law. Among the early natural law writers, Francisco de Vitoria, Dominican
professor of theology at the University of Salamanca, examined the question of just war and
Spanish authority in the Americas. He did so while Spain was at the height of its power, after the
violent Spanish conquest of Peru in 1536.
Eclectic school
Central in the development of modern international law was Hugo Grotius a Dutch theologian,
humanist and jurist. In his principal work De jure Belli ac Pacis Libri Tres ("Three Books on the
Law of War and Peace"; 1625), Grotius claimed that nations as well as persons ought to be
governed by universal principle based on morality and divine justice. Much of Grotius's content
drew from the Bible and from classical history (just war theory of Augustine of Hippo). Drawing
also from domestic contract law, he also noted that relations between polities were governed by
jus gentium, the law of peoples, which had been established by the consent of the community of
nations.
The fundamental facets of the Grotian or eclectic school, especially the doctrines of legal
equality, territorial sovereignty, and independence of states, became definitive to international
law in Europe. These principals were recognised in the Peace of Westphalia and became the
foundation for the treaties of Osnabruck and Munster.

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Another eclectic thinker, German philosopher Christian von Wolff, contended that the
foundation for international community should come as a world super-state (civitas maxima),
having authority over the component member states. This view was rejected by the Swiss
diplomat Emmerich de Vattel, who favored a rationale of equality of states as articulated by 18th
century natural law. Vattel suggested in his major work Le droit des gens that the law of nations
was comprised of custom and law on the one hand, and natural law on the other.
Legal positivism
The early positive school emphasized the importance of custom and treaties as sources of
international law. Among the early positivists was Alberico Gentilis, a professor of civil law at
Oxford who used historical examples to posit that positive law (jus voluntarium) was determined
by general consent. Another professor at Oxford, Richard Zouche, published the first manual of
international law in 1650.
In the 18th century legal positivism became popular and found its way into international legal
philosophy. The principal figure among 18th century positivists was Cornelius van Bynkershoek,
a celebrated Dutch jurist who asserted that the bases of international law were customs and
treaties commonly consented to by various states. A second positivist, John Jacob Moser was a
prolific German scholar who emphasized the importance of state practice in international law. A
contemporary German scholar, Georg Friedrich von Martens, published the first systematic
manual on positive international law, Precis du droit des gens moderne de l'Europe.
The growth of nationalism and Hegelian philosophy in the 19th century pushed natural law
farther from the legal realm. Commercial law became nationalized into private international law,
distinct from public international law. Positivism narrowed the range of international practice
that might qualify as law, favouring rationality to morality and ethics. The Congress of Vienna in
1815 marked formal recognition of the political and international legal system based on the
conditions of Europe.
(E) MAJOR PLAYERS OR ACTORS IN INTERNATIONAL LAW
Institutions Involved in the Process

As international law developed in the 17th and 18th centuries, it was widely understood that it
was a tool for relations between nation-states. Individuals had no role in the process which
resolved disputes between states except as representatives of the states, such as diplomats or
naval officers. The classic ‗player‘ is the sovereign body of the nation in whatever form it takes
for a given state. It can be the President, Prime Minister, King, or Queen, but it is now often the
bureaucratic representation of the sovereign power, such as the State Department, the Foreign
Ministry, the military, etc. Until the middle of the 20th Century, international law consisted
primarily of custom. More recently, customary international law has been increasingly codified.

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While that part of the governmental entity charged with foreign relations will have the lead role
in developing international law for the country, in practice each subunit of a government has
some ability to create what can be recognized as International Law. In the United States, for
example, the Executive Branch (acting through the State Department) may sign a treaty, but the
President ratifies it with the "advice and consent" of the Senate, and the Congress as a whole
may pass laws implementing it. In addition, administrative agencies can make and enforce
regulations implementing the treaty and the statutes, and the courts can interpret any of the above
and use non-treaty related international law as an exercise of their judicial power.
On the global scale, international organizations such as the United Nations and the European
Union have become extremely important as forums for creating international law. The most
recent development in this area has been the recognition that there is a role, within the sphere of
public international law, for individuals to pursue remedies against sovereign nations. As there is
no central international body that creates public international law. Generally speaking, the
representatives of nation states are the primary players in the creation of public international law.
These representatives of the nation states include not only the heads of state, such as Presidents,
Prime Ministers or Kings but also the bureaucratic bodies involved in foreign policy e.g.: State
Departments, Foreign Ministries, or the military. Inter-Governmental Organizations (IGOs), such
as the United Nations or the European Union, have also developed as primary forum for the
creation of public international law through the codification of customary law by way of
international treaties.
United Nations
The UN is the largest and most complicated of the IGOs and acts as the umbrella organization
for many other special subject oriented organizations. The UN develops, creates and enforces
international law in many levels. As stated above, the UN serves as an umbrella for many subject
oriented organizations. These specialized agencies of the UN coordinate worldwide activities in
specific subject areas. They are organized in different ways with varying amounts of power and
structures. They are the result of treaties and sometimes serve to coordinate additional treaties in
the same subject area. Most of them produce some sort of legislation-like materials and have a
form of representative body. Some have adjudicative bodies with of limited jurisdiction but all
produce documents such as treaties, records, regulations and decisions. Subject oriented
organizations include:
• Food and Agriculture Organization
• International Civil Aviation Organization
• International Labour Organization
• International Monetary Fund
• UNESCO
• World Health Organization
• World Intellectual Property Organization

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European Union
The EU consists of 27 member countries, with 3 candidates waiting for admission. EU rules and
decisions have a direct effect on the citizens of the member states. Originally the EU was
organized for economic coordination and development of the member states, but it has evolved
into social issues as well. The rule making and judicial systems of the EU are tied in to a co-
decision system involving the European Commission, the Council of the European Union, and
the European Parliament. Everything you ever wanted to know, but were afraid to ask, about the
EU can be found in the European Navigator, a very useful and informative site.
Council of Europe
The Council of Europe was founded in 1949 with the aim to develop common and democratic
principles based on the European Convention on Human Rights. It has 47 member states and 5
observer countries: the Holy See, the United States, Canada, Japan, Mexico. It is organized into
three main bodies: the Committee of Ministers is the Council's decision-making body, and is
composed of the Foreign Ministers, or the Permanent Representatives, of the 47 member states;
the Parliamentary Assembly, grouping 636 members (318 representatives and 318 substitutes)
from the 47 national parliaments; and the Congress of Local and Regional Authorities, a
consultative body representing local and regional authorities.
Special Situation Courts

Since the creation of special courts to address the issues of war crimes after World War II there
have been a series of other courts created to handle particular issues of international concern.
The following is a list of the most prominent of those courts.
• Nuremberg Trials
• International Tribunal for the Far East
• International Criminal Tribunal for Rwanda
• International Criminal Tribunal for the Former Yugoslavia
• Iran-U.S. Claims Tribunal

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CHAPTER 2
ORIGIN AND HISTORICAL DEVELOPMENT OF PUBLIC

INTERNATIONAL LAW
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(A) Introduction
(B) Evolution Of The Concept Of Law At International Level
(C) Early Origins and Development in Middle Ages and Renaissance period
(D) Positive Law and Natural Law
(E) Founders of the Modern International Law.
(F) Development in the Nineteenth & Twentieth Century
(A) INTRODUCTION
Use of the term ‗International Law‘
The international law was first used by Jeremy Bentham with a view to distinguish law form the
municipal law and emphasis the that it is a law between nations and not individual citizen In the
part, international law was referred as the law of Nations was in are presently International law
is divided into conflict of law also called private International law and public international law
many times it is just called international law The private international law deals with those
cares, in which foreign elements is involved and question as to the application of foreign law or
its role is determined within particular national legal systems . The law is mostly developed
through judicial decisions in English speaking countries of a two Indian performs marriage
under a contract made in us and later settled in England. The conflict may arise in the law
operating in different legal system as to the fact connected each other of the one of the party
applies for divorce before English court whether it is a proper forum to decide this question ; if
they found that it has a jurisdiction then they will have decide which is the proper law for
resolution of dispute.
The public international law is an independent subject as such for the state and it is not just
adjunct part of the legal system. The State under international law has an obligation to perform
certain international Obligations and also fulfill the conditions of formalities at domestic level.
The term ‗transnational law‘ has been coined recently to describe the study of any aspect of law
that concern more than one state particularly in the commercial field. The element of
supranational law has been emerging in European Union. The comparative law may also be
called as supranational in which the study of now the laws of different states with a particular
areas or issue of domestic law may also be called the element of transnational law.

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(B) EVOLUTION OF THE CONCEPT OF LAW AT INTERNATIONAL LEVEL

The law has played a significant role in the history of mankind from pre-historic period of
hunting to post-modern period of internet surfing. From the beginning of the civilization, the law
had been viewed as an element to establish order and stable relationship among the members of
the community or groups. Every society or community according to its own requirement in a
particular period or development created a framework of rules and principles to achieve the
object of order and stability. The irrespective of law‘s character, it has been treated as a force
which binds all members of the community together and recognizes certain values and standards
to which they have shown the preference for adherence. In the course of history, the repeated
practices latter converted into standardized format and also supplemented by further elaborative
documentation by representative organs. When the State system developed to the stage of
commanding all the members and its resources within the territory claimed sovereignty- a
principle or right to claim exclusive authority to represent the State internal as well as external
affairs. International law reflects the establishment and subsequent modification of a world
system founded almost exclusively on the notion that independent sovereign states are the only
relevant actors in the international system. The essential structure of international law was
mapped out during the European Renaissance, though its origins lay deep in history and can be
traced to cooperative agreements between peoples in the ancient Middle East. The State system
became more prominent in the 14th century in Europe. However, such kind of a state was in
existent in some other parts of the world including India, Iraq, Iran, China, Japan and Far East. In
the modern period after the renaissance, in Hugo Grotius‘s period, it has been recognised
independently and distinctly as a separate subject.
(C) EARLY HISTORY OF INTERNATIONAL LAW

In order to trace the international law in ancient world, one has to go into the history of ancient
Greek city states, Egypt, China, Islamic world and India. We may find that in the ancient
civilization rules of conduct to regulate the relations between different communities which were
emerged form usages observed by these communities in mutual relations. In those days even,
there were treaties the immunities of ambassadors, and certain usages applicable to war. In
Chinese and Islamic history even there are evidences of courts in which recourse were taken by
the states. However, Prof. Starke pointed out that such evidences or early instances may not be
representing any serious contribution towards the evolution of the modern system of
international law.3
The first international treaty known to the historian at present is almost four thousand years old,
around 2100 B. C., a solemn treaty was signed between the rulers of Lagash and Umma, the
city–state situated in the Mesopotamia.4 Another major instance of a treaty known is between
Egypt and Hittites (modern Turkey and Syria) at least one thousand year before Christ. In this
3
Starke, Public International Law at p 2
4
Ibid

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treaty Ramses II of Egypt and the King of the Hittites established peace and brotherhood
including territorial integrity and respect for each other and termination of a state of aggression.
They also set up under the treaty as one kind of a form of defensive alliance in the region. The
spirit behind these treaty relations may also in the statement of prophet Isaiah who said that
agreement even if it is made with the enemy must be performed. Peace and social justice were
the pivotal point in the existence of mankind and not the power of sovereign.5
Many rulers in Ancient India long before the birth of Christ displayed a function of morality and
generosity in international relationship.
In ancient Greek civilization, there are numerous instances of treaties which were linking one
city state to another in a network of commercial and political associations under these treaties,
rights were granted to the citizen of the state in each other‘s territories and rules regarding the
sanction and protection of diplomatic envoys developed. In the Greek period, there was small but
independent city-states. The law which was governing these independent, regionally limited
units can be called an embryonic evidence of modern international law. In view of this
development, Prof. Vinogradoff described that law as inter-municipal law6. That inter-municipal
law was composed of many rules which had crystallized into law from long-standing usages
followed by these cities such as, for instance, the rules as to the inviolability of the raids in battle,
the need for prior declaration of war, and the enslavement of prisoners of war. 7 These treaties
were also made essential to follow certain formalities before Declaration of War thereby the
horrors of war were ameliorated. However, there was no as such moral approach as it was
emerged in ancient Jewish and Hindu thoughts.
In Roman period, there was a respect for state‘s organisation and law8. They developed the idea
of a jus genius which provided simplified rules to govern the relations between foreigners and
between foreigners and citizens. The instrumental institution through which this particular
system was evolved was the official knows as the praetor peregrines, whose function it was to
overseen all legal relationships, including bureaucratic and commercial matters, within empire.
The jus gentium, in the course of time became the common law of the Roman Empire and had
universal application ability; however it was ―national law‖ in the sever, and cannot be called as
modern international law.
One of the Greek is concept ―idea of natural law‖ was taken up by the Roman and made are of it
while developing the contemporary concept of law. The ―law of nature‖ as rooted in the very
nature of human being, followed in to the law making and became universally applicable.
Romans provided justification for just gentium, which now a national law treated as most
5
Ibid
6
See Starke p. 8
7
Ibid
8
See A. Jolowicz, Historical Introduction to Roman law, 3 rd edn. London, 1972

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rational design in modern legal system. The contemporary international law more or the less
propagate for universal it of law and rational origins of legal rules – at least cumulative efforts of
Roman legal theory and Greek conceptions of natural law. The Corpus Juries Civilly, a
compendium of legal material made by Byzantine philosophers completed in 534 AD which also
proved to be invaluable when Roman Empire disintegrated in the middle ages.
Islam came in to existence in Arabia in 7th century. During the period of war and hostility
Muslim rulers discriminated the opposite party on the bears as Muslim or non- Muslim. After
conquering power and consolidating in the Arab and near territories, norms governing conduct
with non- Muslim state began to develop the law governing treaties was founded on the basis of
promises made. They also developed the law relating to diplomats on the basis of hospitality and
safety.
(D) INTERNATIONAL LAW IN MIDDLE AGES

In the middle Ages the authority was merged with church and commanding the people with the
help of comprehensive structure of power. Entire Europe came under one religion and one law
that is ecclesiastical law applied to all (canon law), notwithstanding the person is tribal or any
other religion. Initially there was a tussle between the religions authorities and the rulers of the
Holy Roman Empire.
However, during this era, the authority of Holy Roman Empire and the supranational character of
traders and navigators have urged a need to develop a law for them. English, law established the
―law merchant,‖ a code of rules covering foreign traders, and was declared to be of universal
application.9 Throughout Europe mercantile courts were set up to settle disputes between
tradesmen and accordingly a network of common regulations and practices evolved throughout
the Europe, a kind of law which can be called as embryonic international trade law. At the same
time maritime code covering the help of juristic work evolved.
In the Middle Ages, the concept of natural law, infused with religious principles through the
writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St.
Thomas Aquinas (1224/25–1274), became the intellectual foundation of the new discipline of the
law of nations, regarded as that part of natural law that applied to the relations between sovereign
states.
After the collapse of the Western Roman Empire in the 5th century ad, Europe suffered from
frequent warring for nearly 500 years. Eventually, a group of nation-states emerged, and a
number of supranational sets of rules were developed to govern interstate relations, including
canon law, the law merchant (which governed trade), and various codes of maritime law—e.g.,
the 12th-century Rolls of Oléron, named for an island off the west coast of France, and the Laws
9
See G. Holdsworth, A History of English Law, London, 1924. Pp. 60-63.

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of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century the arrival of
Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of the
printing press spurred the development of scientific, humanistic, and individualist thought, while
the expansion of ocean navigation by European explorers spread European norms throughout the
world and broadened the intellectual and geographic horizons of Western Europe. The
subsequent consolidation of European states with increasing wealth and ambitions, coupled with
the growth in trade, necessitated the establishment of a set of rules to regulate their relations. In
the 16th century the concept of sovereignty provided a basis for the entrenchment of power in the
person of the king and was later transformed into a principle of collective sovereignty as the
divine right of kings gave way constitutionally to parliamentary or representative forms of
government. Sovereignty also acquired an external meaning, referring to independence within a
system of competing nation-states.
Early writers who dealt with questions of governance and relations between nations included the
Italian lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern
study of private international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal
adviser, and authority on Roman and feudal law.
(E) DEVELOPMENT OF INTERNATIONAL LAW IN MODERN PERIOD

In the Renaissance period applied, when the intellectual and rational principled were most of the
rules growing out of. The early middle Ages, proved to be seeds of international law. The result
of renaissance period, new world with scientific, humanistic and individualistic of printing
machinery during 15th century provided the means to spread knowledge. The collapse of and new
class of merchant with economic growth provided a backgrounds to era.
Many of the concepts that today underpin the international legal order were established during
the Roman Empire. The jus gentium (Latin: ―law of nations‖), for example, was invented by the
Romans to govern the status of foreigners and the relations between foreigners and Roman
citizens. In accord with the Greek concept of natural law, which they adopted, the Romans
conceived of the jus gentium as having universal application.
The essence of the new approach, however, can be more directly traced to the philosophers of the
Spanish Golden Age of the 16th and 17th centuries. Both Francisco de Vitoria (1486–1546), who
was particularly concerned with the treatment of the indigenous peoples of South America by the
conquering Spanish forces, and Francisco Suárez (1548–1617) emphasized that international law
was founded upon the law of nature.
In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of the secular
school of thought in international law, published De jure belli libri tres (1598; Three Books on
the Law of War), which contained a comprehensive discussion of the laws of war and treaties.

15
Gentili‘s work initiated a transformation of the law of nature from a theological concept to a
concept of secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–1645)
has influenced the development of the field to an extent unequaled by any other theorist, though
his reputation as the father of international law has perhaps been exaggerated. Grotius excised
theology from international law and organized it into a comprehensive system, especially in De
Jure Belli ac Pacis (1625; On the Law of War and Peace). Grotius emphasized the freedom of
the high seas, a notion that rapidly gained acceptance among the northern European powers that
were embarking upon extensive missions of exploration and colonization around the world.
Thus, the international law has been developing over many centuries however, the present or
modern international law as we know it today is commonly said to have begun with two events.
One is the Hugo Grotius‘s work of 1625 and with the treaty called as Peace of Westphalia 1648.
The event of treaty marked for the end of the feudalism and establishment of the modern state
with central governmental institutions that could enforce control over its inhabitant and defend
them against other states. But these states had to live with other States. Therefore there was a
need of common rules governing their external conduct. From the very beginning of the
civilization, some rudimentary rules in the form customary rules were already in practice. In fact,
the growth of notion of sovereignty and independent nation-state in Europe has provided the base
for the development of international law. In that century they began to develop the rules, what
we find today as law. Thus, the modern system of international law is a product of only the last
four hundred years.10
Mostly the law has grown one of urges and practices of modern European states in their
intercourse and communication ones. The jurists in the sixteenth, seventeenth and eighteenth
centuries formulated most of the fundamental tenets with the help of customary practices and
provided a theoretical framework for further development. The European nation and its cultural
traditions, and thought were responsible for shaping the present content of International law in
modern period. There are some traces of international law in the non-European countries in the
ancient history of those countries.
The scholars who followed Grotius can be grouped into two schools, the naturalists and the
positivists. The former camp included the German jurist Samuel von Pufendorf (1632–94), who
stressed the supremacy of the law of nature. In contrast, positivist writers, such as Richard
Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the Netherlands,
emphasized the actual practice of contemporary states over concepts derived from biblical
sources, Greek thought, or Roman law. These new writings also focused greater attention on the
law of peace and the conduct of interstate relations than on the law of war, as the focus of
international law shifted away from the conditions necessary to justify the resort to force in order
to deal with increasingly sophisticated interstate relations in areas such as the law of the sea and
10
See, A. Nussbaum, A Concise History of the Law of Nations, revised edition. New York 1954

16
commercial treaties. The positivist school made use of the new scientific method and was in that
respect consistent with the empiricist and inductive approach to philosophy that was then gaining
acceptance in Europe. Elements of both positivism and natural law appear in the works of the
German philosopher Christian Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–
67), both of whom attempted to develop an approach that avoided the extremes of each school.
During the 18th century, the naturalist school was gradually eclipsed by the positivist tradition,
though, at the same time, the concept of natural rights—which played a prominent role in the
American and French revolutions—was becoming a vital element in international politics. In
international law, however, the concept of natural rights had only marginal significance until the
20th century. Positivism‘s influence peaked during the expansionist and industrial period of 19th
century, when the notion of state sovereignty was buttressed by the ideas of exclusive domestic
jurisdiction and nonintervention in the affairs of other states—ideas that had been spread
throughout the world by the European imperial powers.
In the 20th century, however, positivism‘s dominance in international law was undermined by
the impact of two world wars, the resulting growth of international organizations—e.g., the
League of Nations, founded in 1919, and the UN, founded in 1945—and the increasing
importance of human rights. Having become geographically international through the colonial
expansion of the European powers, international law became truly international in the first
decades after World War II, when decolonization resulted in the establishment of scores of
newly independent states. The varying political and economic interests and needs of these states,
along with their diverse cultural backgrounds, infused the hitherto European-dominated
principles and practices of international law with new influences.
The development of international law—both its rules and its institutions—is inevitably shaped by
international political events. From the end of World War II until the 1990s, most events that
threatened international peace and security were connected to the Cold War between the Soviet
Union and its allies and the U.S.-led Western alliance. The UN Security Council was unable to
function as intended, because resolutions proposed by one side were likely to be vetoed by the
other. The bipolar system of alliances prompted the development of regional organizations—e.g.,
the Warsaw Pact organized by the Soviet Union and the North Atlantic Treaty Organization
(NATO) established by the United States—and encouraged the proliferation of conflicts on the
peripheries of the two blocs, including in Korea, Vietnam, and Berlin. Furthermore, the
development of norms for protecting human rights proceeded unevenly, slowed by sharp
ideological divisions.
The Cold War also gave rise to the coalescence of a group of nonaligned and often newly
decolonized states, the so-called ―Third World,‖ whose support was eagerly sought by both the
United States and the Soviet Union. The developing world‘s increased prominence focused

17
attention upon the interests of those states, particularly as they related to decolonization, racial
discrimination, and economic aid. It also fostered greater universalism in international politics
and international law. The ICJ‘s statute, for example, declared that the organization of the court
must reflect the main forms of civilization and the principal legal systems of the world.
Similarly, an informal agreement among members of the UN requires that nonpermanent seats
on the Security Council be apportioned to ensure equitable regional representation. 5 of the 10
seats have regularly gone to Africa or Asia, two to Latin America, and the remainder to Europe
or other states. Other UN organs are structured in a similar fashion.
The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased
political cooperation between the United States and Russia and their allies across the Northern
Hemisphere, but tensions also increased between states of the north and those of the south,
especially on issues such as trade, human rights, and the law of the sea. Technology and
globalization—the rapidly escalating growth in the international movement in goods, services,
currency, information, and persons—also became significant forces, spurring international
cooperation and somewhat reducing the ideological barriers that divided the world, though
globalization also led to increasing trade tensions between allies such as the United States and
the European Union (EU).
Since the 1980s, globalization has increased the number and sphere of influence of international
and regional organizations and required the expansion of international law to cover the rights and
obligations of these actors. Because of its complexity and the sheer number of actors it affects,
new international law is now frequently created through processes that require near-universal
consensus. In the area of the environment, for example, bilateral negotiations have been
supplemented—and in some cases replaced—by multilateral ones, transmuting the process of
individual state consent into community acceptance. Various environmental agreements and the
Law of the Sea treaty (1982) have been negotiated through this consensus-building process.
International law as a system is complex. Although in principle it is ―horizontal,‖ in the sense of
being founded upon the concept of the equality of states—one of the basic principles of
international law—in reality some states continue to be more important than others in creating
and maintaining international law.
(F) CURRENT TRENDS IN INTERNATIONAL LAW
International law has been transformed from a European-based system enabling sovereign states
to interact in a relatively limited number of areas to a truly international order with profound and
increasingly cooperative requirements. Globalization has ensured that the doctrine of the
sovereignty of states has in practice been modified, as the proliferation of regional and global
international organizations demonstrates. In an increasing number of cases, certain sovereign
powers of states have been delegated to international institutions. Furthermore, the growth of

18
large trading blocs has underscored both regional and international interdependence, though it
also has stimulated and institutionalized rivalries between different blocs. The striking
development of the movement for universal human rights since the conclusion of World War II
has led to essentially unresolved conflicts with some states that continue to observe traditional
cultural values. The rules governing the use of force have focused particular attention on the UN,
but violent disputes have not disappeared, and the development of increasingly deadly
armaments—including biological, chemical, and nuclear weapons (so-called ―weapons of mass
destruction‖)—has placed all states in a more vulnerable position. Particular challenges are
posed when such weapons are possessed by states that have used them or threaten to do so. In
2003 the United States and Britain led an attack against Iraq and overthrew its government
because they believed that the country continued to possess weapons of mass destruction in
defiance of binding Security Council resolutions; the attack proceeded despite opposition from a
majority of the council to a proposed resolution explicitly authorizing the use of force. Although
terrorism is not a new phenomenon, the increasing scale of the destruction it may cause, as well
as the use by terrorists of modern forms of communication such as computers and mobile
phones, has raised serious new challenges for international law—ones that may affect the
interpretation of the right of self-defense and pose a critical test for the UN.
Reading Material
1. Starke, Introduction to International Law
2. Robert Jennings and Arthur Watts, Oppenheim's International Law, 9th ed. (1992,
reissued 1996).
3. D.P. O'Connell, International Law, 2nd ed., 2 vol. (1970);
4. J.H.W. Verzijl, International Law in Historical Perspective, 12 vol. (1968–98).
5. Ian Brownlie, Principles of Public International Law, 5th ed. (1998);
6. Malcolm N. Shaw, International Law, 5th ed. (2003);
7. Rosalyn Higgins, Problems and Process: International Law and How We Use It
(1994, reissued 1998);
8. Louis Henkin, International Law: Politics and Values (1995).
9. G. I. Tunkin, Theory of International Law (1974; originally published in Russian,
1970)

19
CHAPTER 3
SOURCES AND EVIDENCE OF INTERNATIONAL LAW
---------------------------------------------------------------------------------------------------------------------
(A) Introduction
(B) Meaning of Sources and Doctrine of Sources and Inductive Science of Law.
(C) Categories of Sources and Art. 38 of the Statutes of International Court of Justice
(D) Hierarchy of Sources of International law.
(A) INTRODUCTION
Sources of international law are the materials and processes out of which the rules and principles
regulating the international community are developed. They have been influenced by a range of
political and legal theories. During the 19th century, it was recognised by legal positivists that a
sovereign could limit its authority to act by consenting to an agreement according to the principle
pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute
of the Permanent Court of International Justice, and preserved in Article 38(1) of the 1946
Statute of the International Court of Justice.
Article 38(1) is generally recognised as a definitive statement of the sources of international law.
It requires the Court to apply inter alia, (a) international conventions "expressly recognized by
the contesting states", and (b) "international custom, as evidence of a general practice accepted
as law". To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the
general principles applied by the Court were those that had been "the general principles of the
law recognized by civilized nations". As it is states that by consent determine the content of
international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial
decisions" and juristic writings "as subsidiary means for the determination of rules of law".
On the question of preference between sources of international law, rules established by treaty
will take preference if such an instrument exists. It is also argued however that international
treaties and international custom are sources of international law of equal validity; this is that
new custom may supersede older treaties and new treaties may override older custom. Certainly,
judicial decisions and juristic writings are regarded as auxiliary sources of international, whereas
it is unclear whether the general principles of law recognized by 'civilized nations' should be
recognized as a principal or auxiliary source of international law.
It may be argued that the practice of international organizations, most notably that of the United
Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an
additional source of international law, even though it is not mentioned as such in Article 38(1) of
the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the
corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus
predating the role that international organizations have come to play in the international plane.

20
That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be
seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint
after the decolonization process that took place in the early 1960s and the participation of nearly
all nations of the world in the United Nations. It is also possible, though less common, for a
treaty to be modified by practices arising between the parties to that treaty. The other situation in
which a rule would take precedence over a treaty provision would be where the rule has the
special status of being part of the jus cogens.
(B) CONCEPT OF SOURCES OF INTERNATIONAL LAW
The question arises here what are the sources of International law? It is important to remember
that there are two allied meanings of the word "source". One sense is related to the origins of the
relevant, substantive norms and principles. The other sense is grounded in identifying the actual
texts involved in the process. How far the role played by International Institutions in law
creation? Since the adoption of the ICJ statute in 1946, the post-World War II growth of a wide
variety of Inter-Governmental Organizations (IGOs) has injected the work product of these IGOs
into the mix as well.
The term ―sources‖ is used in different senses. Oppenheim (8th Edition) points out the
distinction between ―sources‖ and ―causes‖ of international law. According to him, there are two
sources of international law: (1) Express consent of the states, and (2) Tacit consent of the states.
(C) CATEGORIES OF SOURCES AND ART. 38 OF THE STATUTES OF

INTERNATIONAL COURT OF JUSTICE
Sources under Article 38(1) of ICJ Statute

The Charter of the United Nations is the establishing document for the International Court of
Justice (ICJ) as the principal judicial organ of the UN. Article 38(1) of the Statute of the
International Court of Justice (the Statute), the treaty establishing the ICJ, lists the sources that
the ICJ uses to resolve disputes. The sources listed in Article 38(1) include treaties, customary
law, case law, academic writings, and general principles of law.
(1) A rule of international law is one that has been accepted as such by the international
community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world.
(2) Customary international law results from a general and consistent practice of states followed
by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to the creation
of customary international law when such agreements are intended for adherence by states
generally and are in fact widely accepted.

21
(4) General principles common to the major legal systems, even if not incorporated or reflected
in customary law or international agreement, may be invoked as supplementary rules of
international law where appropriate.
The statute of the International Court of Justice directs the Court to apply the following sources
for ascertaining international law:
(1) International treaties and conventions

(2) International custom
(3) The general principles of law recognized by civilized nations.
(4) Judicial or arbitral decisions
(5) Juristic works
Additionally, a sixth source is:
(6) Decisions and determinations of the organs of international organizations.
Each of the above sources will now be discussed in necessary details.
The ICJ statute shows that International Law does not have an easily identifiable ‗law-giver".
Under these circumstances, how do we find out if something is a rule in international law? What
is it we are looking for? The ways norms are identified as international law include agreements
negotiated by the affected parties, deference to a third-party decision-maker, academic
persuasion and consensus , and custom (state practice and the opinion that the practice is dictated
by a legal obligation). There is considerable difference of opinion amongst writers on
international law regarding the kinds and number of sources of international law.
According to Prof. Briefly, there are two main sources of international law, first is custom and
second is reason. Following the practical approach adopted by Starke, it may be said that by
international law is meant the actual materials from which an international lawyer ascertains the
rule applicable to a given situation. The materials from which he tries to collect these rules are
generally the following: Custom; Treaties; Decisions of judicial Tribunals or arbitral Tribunals;
Writings or determinations of the organs of International Institutions; Decisions or
determinations of the organs of International Institutions;
Evidence of International Law
(1) Whether a rule has become international law is determined by evidence appropriate to the
particular source from which that rule is alleged to derive.
(2) In determining whether a rule has become international law, substantial weight is accorded
to:
a) Judgments and opinions of international judicial and arbitral tribunals;

22
b) Judgments and opinions of national judicial tribunals;

c) The writings of scholars;
d) Pronouncements by states that undertake to state a rule of international law, when such
pronouncements are not seriously challenged by other states.
(D) HIERARCHY OF SOURCES OF INTERNATIONAL LAW?

General principles are complementary to treaty law and custom. Sources that are of more recent
origin are generally accepted as more authoritative and specific rules take precedence over
general rules. Jus cogens (Latin: ―compelling law‖) rules are peremptory norms that cannot be
deviated from by states; they possess a higher status than jus dispositivum (Latin: ―law subject to
the dispensation of the parties‖), or normal international rules, and can be altered only by
subsequent norms of the same status. Rules in the former category include the prohibitions
against genocide, slavery, and piracy and the outlawing of aggression. Other examples of jus
cogens rules are more controversial. The Vienna Convention on the Law of Treaties provides
(Article 53) that a treaty will be void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. Further, the wrongfulness of a state action is
precluded if the act is required by a peremptory norm of general international law. For a jus
cogens norm to be created, the principle must first be established as a rule of international law
and then recognized by the international community as a peremptory rule of law from which no
derogation is permitted.
International law also has established a category of erga omnes (Latin: ―toward all‖) obligations,
which apply to all states. Whereas in ordinary obligations the defaulting state bears responsibility
toward particular interested states (e.g., other parties to the treaty that has been breached), in the
breach of erga omnes obligations, all states have an interest and may take appropriate actions in
response.

23
CHAPTER 4
CUSTOM AS A SOURCE OF INTERNATIONAL LAW
(A) Meaning and Definition

(B) Essential Elements of the custom.
(C) Contemporary Importance of the Customary International law.
(D) Cases on International Customary Law
(A) MEANING & DEFINITION

In the field of international law, customary law refers to the Law of Nations. The Law of
Nations is composed of the legal norms that have developed through the interactions between
states over a period of time. The concept implies that states are expected to carry out their affairs
consistently with past accepted conduct. Customary law can change based on the acceptance or
rejection by states of particular acts. Norms that achieve universal acceptance can become
peremptory norms that cannot be violated or changed except by a norm of comparable strength.
Many international treaties are attempts to codify existing customary law.
The ICJ's statute refers to ―international custom, as evidence of a general practice accepted as
law,‖ as a second source of international law. Custom was considered to be almost the sole
source of international law, for quite a long time. Theses customary rules of international law
have evolved by a long historical process, and they are recognized as such by the international
community. Article 38.1(b) of the ICJ Statute refers to "international custom" as a source of
international law, specifically emphasizing the two requirements of state practice plus acceptance
of the practice as obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).
The custom is derived from the consistent practice of (originally) of Western states accompanied
by opinio juris (the conviction of States that the consistent practice is required by a legal
obligation), constitute customary international law which is differentiated from acts of comity by
the presence of opinio juris. The opinio juris is not present in comity, whereas, it is the important
element of customary international law. Treaties have gradually displaced much customary
international law. This development is similar to the replacement of customary or common law
by codified law in municipal legal settings, but customary international law continues to play a
significant role in international law.
Custom and Usage Distinguished

Though the terms custom and usage are often used to mean the same thing, there is a fine
distinction between them. Usage is a prior state in the development of custom. When a usage
crystallizes itself, it becomes a custom. Custom begins where usage ends. Usage, in the words of
prof. Starke, ―is an international habit of action that has not yet received the full legal

24
attestation‖. Usages may be conflicting. These usages become custom when they become unified
and self-consistent. As Vainer puts it, ―A custom……is such a usage as hath obtained the force
of law‖.
When Usage Becomes a Custom?

According to Oppenheim, ―As usages have a tendency to become custom, the question presents
itself, as to at what time does a usage turn into custom? This question is one of fact, not of
theory‖. As Oppenheim continues, ―International jurists speak of a custom when a clear and
continuous habit of doing certain action has grown up under the aegis of the conviction that these
actions are, according to international law, obligatory or right‖. Prof. Starke is of the opinion that
before a usage may be considered as amounting to a customary rule of international law, two
tests must be satisfied: (i) The material lest, and (ii) The psychological test.
(C) ESSENTIAL ELEMENTS OF INTERNATIONAL CUSTOMARY LAW
How does a rule become customary international law?

When states act consistently in their international and internal relations during a long period of
time, these actions/practises become accepted by the international community as applicable law.
International customary law is comprised of all the written or unwritten rules that form part of
the general international idea of justice. Unlike treaty law, which must be followed only by states
that are parties to the agreement in question, international customary law is binding upon all
states, no matter whether they have ratified a treaty, which contain the rule in question, or not.
Two criteria‘s
There are two criteria‘s for identifying a rule as part of international customary law.
Element 1: MATERIAL TEST- General Practice (Usus)

Customary law is confirmed through the actions of states (objective criteria) in accordance with
what is expected of them by international jurisprudence. States' actions are manifested through
their official statements and actual actions.
There must, in general, be a recurrence or repetition of the acts which give birth to the rule. Both
the frequency with which they recur and the length of time for which they have recurred, would
be relevant in ascertaining whether a rule of customary law is created.
International customary law is based on prolonged and consistent actions by most states in the
world. When states act consistently in their international and internal relations during a long
period of time these actions/practices become accepted by the international community as
applicable law. Examples of international customary law are the right to life, the prohibition of
torture, and that civilians should not be the object of an attack.

25
When examining state practice to determine relevant rules of international law (such as the law
that all children have the right to play), it is necessary to take into account every activity of the
organs and officials of states that relate to that purpose. There has been continuing debate over
where a distinction should be drawn as to the weight that should be attributed to what states do,
rather than what they say represents the law. In its most extreme form, this would involve
rejecting what states say as practice and relegating it to the status of evidence of opinio juris. 11 A
more moderate version would evaluate what a state says by reference to the occasion on which
the statement was made.12 It is only relatively powerful countries with extensive international
contacts and interests that have regular opportunities of contributing by deed to the practice of
international law. The principal means of contribution to state practice for the majority of states
will be at meetings of international organisations, particularly the UN General Assembly, by
voting and otherwise expressing their view on matters under consideration. Moreover, there are
circumstances in which what states say may be the only evidence of their view as to what
conduct is required in a particular situation.13
The notion of practice establishing a customary rule implies that the practice is followed
regularly, or that such state practice must be "common, consistent and concordant". 14 Given the
size of the international community, the practice does not have to encompass all states or be
completely uniform. There has to be a sufficient degree of participation, especially on the part of
states whose interests are likely be most affected,15 and an absence of substantial dissent.16 There
have been a number of occasions on which the ICJ has rejected claims that a customary rule
existed because of a lack of consistency in the practice brought to its attention.17 Within the
context of a specific dispute, however, it is not necessary to establish the generality of practice.
A rule may apply if a state has accepted the rule as applicable to it individually, or because the
two states belong to a group of states between which the rule applies.18
A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate
its persistent objection to that rule,19 either as a member of a regional group20 or by virtue of its
membership of the international community.21 It is not easy for a single state to maintain its
dissent. Also, rules of the jus cogens have a universal character and apply to all states,
11
D'Amato, A., The Concept of Custom in International Law (Cornell Unive Press: Ithaca, New York, 1971) at 88.
12
Thirlway, H., International Customary Law and its Codification (A. W. Sijthoff: Leiden, 1972) at 58.
13
See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Reports 14.
14
Fisheries Jurisdiction Case (United Kingdom v Iceland) (Merits) [1974] ICJ Reports 3 at 50
15
North Sea Continental Shelf Cases [1969] ICJ Reports 4 at 42.
16
Nicaragua case (Merits), note 4 at 98.
17
Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or
Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226.
18
Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Reports 6 at 39;
19
North Sea Continental Shelf cases, note 6 at 229, 232 per Judge Lachs.
20
Asylum case, note 8 at 277-8.
21
Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Reports 116, at 131. 2.

26
irrespective of their wishes.22 Demand for rules that are responsive to increasingly rapid changes
has led to the suggestion that there can be, in appropriate circumstances, such a concept as
"instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short
period of time is not necessarily a bar to the formation of a new rule. 23 Because of this, the
question is sometimes raised as to whether the word "custom" is suitable to a process that could
occur with great rapidity.
Element 2: PSYCHOLOGICAL TEST (OPINIO JURIS) Sense of legal obligation

The Opino Juris is the expressed opinion of states that their actions have a legal basis. It is thus
states themselves (subjective criteria) that recognise certain legal practices or rules as being
legally binding. Customary international law is something done as a general practice — not
because it is expedient or convenient, but because it is considered law, out of a sense of legal
requirement.
It is not merely the recurrence that creates a customary rule. What is also necessary is that this
recurrence must be a result of a conviction that there is compulsory rule behind such a
recurrence. This conviction or opinion juries, is a convenient, if not an invariable, test for
ascertaining that a usage or a practice has crystallized itself into a custom. This opinion juries
must be inferred from all the circumstances, and not merely from the details which constituted
the material element of the alleged customary rule. A wealth of state practice will usually carry
with it a presumption that opinio juris exists. It would then be for the state against which the rule
is pleaded to rebut that presumption by demonstrating the absence of opinio juris in the activities
being relied upon by the other party.24
In cases where practice (of which evidence is given) comprises abstentions from acting,
consistency of conduct might not establish the existence of a rule of customary international law.
The fact that no nuclear weapons have been used since 1945, for example, does not render their
use illegal on the basis of a customary obligation because the necessary opinio juris was
lacking.25 Although the ICJ has frequently referred to opinio juris as being an equal footing with
state practice,26 the role of the psychological element in the creation of customary law is
uncertain. The following are illustrations of customary rules crystallizing from usages or
practices:
a) Diplomatic Relations between States: State practices, declarations by statesmen, bilateral
treaties, etc., have crystallized usages into custom in this branch of international law.
22
See North Sea Continental Shelf cases, note 6 at 229 per Judge Lachs.
23
North Sea Continental Shelf cases, note 6 at 43.
24
See North Sea Continental Shelf cases, note 6 at 44. Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory
Opinion) [1971] ICJ Reports 16 at 47.
25
Legality of Nuclear Weapons Advisory Opinion (GA), note 8
26
Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Reports 13 at
29; Legality of Nuclear Weapons Advisory Opinion (GA), note 8 at 16

27
b) Practices of International Organs: The practice of the international institutions has led to
crystallization of customary rules of international law regarding the status, powers, and
responsibilities of such institutions.
c) State Laws And State Military And Administrative Practices: If state laws or state
practices of several states at several times concur, such concurrence may indicate the general
recognition of a broad principle of law. This is fully illustrated by the case of the Scotia,
which was decided by the Supreme Court of the United States of America. In that case, a
British ship ―Scotia‖ collides with ―Berkshire‖, an America ship. As a result, the ―Berkshire‖
sank. The ―Berkshire‖, was not carrying the lights which were required by a series of
regulations adopted by the British Government and also by the American Congress. The
question to be decided was whether the ―Berkshire‖ was required to carry the lights
according to the new regulations or whether it was enough if it satisfied the old customary
law. The Supreme Court of the U.S.A. held that by a concurrence of these state laws, a new
customary international law was evolved, and therefore ―Berkshire‖, being a defaulter
according to the new customary law, could not recover damages. This case fully illustrates
how concurrences of state laws might crystallize a usage into custom.
JUDICIAL APPLICATION OF CUSTOM

Very often, it becomes necessary for the courts to examine whether a particular rule has validly
established itself as a customary rule of international law. To do this, the court must examine the
following to ascertain the position: Treaties, The practice of states, Diplomatic correspondence,
Decisions of the state courts and Juristic writings. This practice was adopted by the Supreme
Court of the U.S.A. in the piquet Habana case and by the Permanent Court of International
justice in the Lotus case.
CASES ON INTERNATIONAL CUSTOMARY LAW

Material Test
The Paquete Habana (1900)
This case is about the Rules of Engagement, going into customary international law. Rules of
Engagement -Before the military engages in an action, it is governed by standing instructions on
what they can and cannot do. These are frequently classified, of course. The Paquete Habana
and the Lola was Cuban fishing boats that were seized by the U.S. during the Spanish-American
war. The U.S. District Court said that the Navy had acted within its authority, under Federal
statute. The Cubans argued that customary international law prohibited us from seizing the ships.
The U.S. S. Ct. agreed, holding that ―international law is part of our law.‖ This established rule
of international law had existed to protect peaceful fishermen from wartime seizures. Coastal
fishing vessels, their cargoes, and their crews, are exempt from capture as prizes of war. (As a
result, every US ROE since then has said to leave fishing boats alone if involved in the peaceful
act of fishing [but not if using fish to camouflage silkworm missiles, however].

28
Asylum Case (1950)

Under the Vienna Convention on Diplomatic Relations, when you get inside the walls of an
embassy, you are inviolable, because others cannot go in and get you without that embassy
country‘s permission. One inch outside, though, and you‘re out of luck. (There are lots of tense
chases here in DC for that reason, spies etc., and China doesn‘t let people within a mile of the US
embassy.) Note, there are several Vienna conventions. There are lots of conventions of all sorts.
Be specific which ones you are referring to. A deposed Peruvian political leader sought asylum
in the Colombian embassy in Peru. The Colombians granted asylum, and wanted to transport
him through Peru to Colombia unscathed, as a matter of law. Colombia relied on a treaty that
Peru had not signed on to. Peru claimed it had no legal obligation. There was no bilateral
agreement between Peru and Colombia. There was no multinational agreement binding on Peru.
Peru had even repeatedly repudiated the Montevideo agreement, so that it would have the status
of a non-consenting state. A multinational agreement can still be binding as customary
international law, even if you didn‘t sign on. Only if you repeatedly repudiate it do you earn the
status of a non-consenting state.
You do have the option of dissenting while international law is being formed, but your
dissension must be active and persistent. Don‘t sit on your hands. Make your protest. Nobody is
going to tell you to do it, you‘re a sovereign. States can do whatever they want. You have the
ability to assert your rights, if you choose, but that means you‘d better do so or else you may lose
the right. Certain fundamental rules, however (such as freedom from torture, slavery, apartheid,
genocide, etc.) cannot be repudiated. They are peremptory norms. International agreements are
governed, not by contract law, but by the Vienna Convention on Treaty Law. Under it, states
can do anything they want to agree to, unless it violates a peremptory norm.
Is there a rule of customary international law binding on Colombia and Peru?

The ICJ said cases went both ways. Colombia pointed to numerous and frequent examples
where American countries allowed safe transport like this. However, the custom was only for
political expediency — it was not done out of a sense of legal obligation. Note — ―Asylum‖ has
different meanings in international law contexts and U.S. domestic-law contexts. It can mean
leaving people alone who are under the protection of another country‘s embassy (something the
US refuses to do, same as Peru here). It can also mean we won‘t repatriate you to a country you
fled for political/humanitarian reasons.
Mere uniformity of external regularity never justifies a conclusion of normativity. Governments

attach importance to distinguishing between custom by which they hold themselves bound, and
the mere practices often dictated by consideration of expediency and therefore devoid of definite
legal meaning. The inductive reasoning that establishes the existence of custom is a tied
reasoning: the matter is not only one of counting the observed regularities, but of weighing those
in terms of social ends deemed desirable.

29
Portugal v. India (1960)

Customary relations between nations becoming binding. (Not, by the way, related to the Anglo-
Saxon concepts of adverse possession or easement.) Portugal had territory within India, and
India wouldn‘t let the Portuguese move their military and ammo back and forth to the enclaves.
India asserted the rights that England had enjoyed, and the right of passage only applied to civil
activities. If you don‘t take the measures to assert your rights, and protest, you acquiesce. You
may even create legal precedent for a customary international law contrary to your interests.
Cases on Opinio Juris

North Sea Continental Shelf Cases (1969)
Germany‘s coastline was concave, so the Dutch/Danish method of equidistant lines would have
reduced German sea control drastically. Germany had actually signed an agreement to that
effect at a party, but when it sobered up it decided not to ratify it. The agreement didn‘t say it
was binding upon being signed, so it wasn‘t binding on Germany until it was ratified (Geneva
Convention of 1958). That didn‘t mean Holland & Denmark couldn‘t argue that it was binding as
customary international law, since everyone else was doing it. There are 3 ways the treaty could
have become binding customary international law:
1. The treaty re-stated a pre-existing custom.
2. The treaty‘s rule crystallized customary law that had been in the process of formation.
3. The treaty‘s rule generated a new customary law following its adoption.
Holland & Denmark argued that this treaty had generated a new customary law, a new norm of
international law binding on everyone. That wasn‘t such a good argument, because Germany had
repudiated the treaty. Also, there had been very little time since the treaty [customary
international law can be created in a short time, but the presumption is that it isn‘t]. Also, only a
few countries were using this rule, and even then they had resorted to equidistance out of
frustration, not because they felt it was a binding legal obligation. Also, it was not apparent that
the provision was a norm-creating provision. It was a secondary provision only. Also, the treaty
permitted reservations, and many countries had made their reservations known. That was hardly
acceptance of a norm-creating law. The ICJ therefore held that there was no customary
international law for the Dutch/Danish position.
Nicaragua v. U.S. (1986)

Customary law may be a source of international law in international disputes. It is separate from
treaty law and convention law, as it must be applied even if the countries are parties to a treaty.
The court held that it is no longer okay to settle disputes with force, a customary norm. It is to be
noted that the use of force can be justified three ways:
(1) Self-defense,
(2) Enforcement under Ch. 7 of the UN Charter, or
(3) Rules of necessity & proportionality, these were in existence before the establishment of UN.
The US and a few other countries assert this third principle from time to time.

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CHAPTER 5
TREATIES AS SOURCE OF INTERNATIONAL LAW
(A) Definition of Treaties

(B) Kinds of Treaties
(C) Significance of Treaty
(D) Jus Cogens- The Challenge to Legal Positivism
(A) DEFINITION OF INTERNATIONAL TREATIES

Treaty law is composed of treaties, which are agreements that states willingly sign and ratify and
are obliged to follow. Agreements between states govern the mutual relations between them and
may be called conventions, statutes or protocols. Agreements are only legally binding on states
that signed and also ratified them. The basis of Treaty law is the rule of law ‗pacta sunt
servanda‘, which means, that agreements must be honored, and adhered to.
The term treaty is used generically to describe a variety of instruments, including conventions,
agreements, arrangements, protocols, covenants, charters, and acts. In the strict sense of the term,
however, many such instruments are not treaties. The key distinguishing feature of a treaty is that
it is binding. For example, the United Nations (UN) Charter (1945) created a binding agreement
and is thus a treaty. Treaties are expected to be executed in good faith, in keeping with the
principle of pacta sunt servanda (Latin: ―agreements must be kept‖), arguably the oldest
principle of international law. Without this principle, which is explicitly mentioned in many
agreements, treaties would be neither binding nor enforceable.
The word treaty is defined a binding formal agreement, contract, or other written instrument that
establishes obligations between two or more subjects of international law (primarily states and
international organizations). The rules concerning treaties between states are contained in the
Vienna Convention on the Law of Treaties (1969), and those between states and international
organizations appear in the Vienna Convention on the Law of Treaties between States and
International Organizations or Between International Organizations (1986).
The Peace Treaties of Westphalia (1648) established the framework for modern treaties and
recognized the right of the sovereign to govern free from outside interference. By the 20th
century, the subject matter of treaties had been expanded to include: humanitarian law, criminal
law, intellectual property, the sale of goods, the environment, outer space, among other topics.
Today, treaties have become the principal source of Public International Law and can also
include the creation of rights for individuals.

31
Treaties may be bilateral (between two countries), or multilateral (between three or more
countries). The treaty text may provide for the manner by which it takes effect. Generally,
treaties will enter into force when it has been signed and ratified by a certain number of parties.
Parties to a treaty may ratify a treaty with reservations or other declarations unless the terms of
the treaty place restrictions on those actions. A reservation is a country's attempt to modify
certain terms of the treaty, as it applies between itself and other countries. The Vienna
Convention on the Law of Treaties is the UN agreement that governs the law relating to treaties
and it can be used as a guide on how treaties are made and other fundamental concepts. The
treaties should be:
• Is it a bilateral or multilateral treaty?
• Who are the parties to the treaty?
• Is the treaty in force?
• Has the treaty been signed, ratified, repudiated, or modified?
• Are there reservations to the treaty?
• Is there an international organization that oversees or administers international law in the
subject area of the treaty?
These are the important question to be seen while the treaties are darted.
(B) KINDS OF TREATIES

The authors of International law have classified treaties in numerous ways. In general, treaties
are classified as multilateral and bilateral treaties. Treaties with a number of parties are more
likely to have international significance, though many of the most important treaties (e.g., those
emanating from Strategic Arms Limitation Talks) have been bilateral. A number of
contemporary treaties, such as the Geneva Conventions (1949) and the Law of the Sea treaty
(1982; formally the United Nations Convention on the Law of the Sea), have more than 150
parties to them, reflecting both their importance and the evolution of the treaty as a method of
general legislation in international law. Other significant treaties include the Convention on the
Prevention and Punishment of the Crime of Genocide (1948), the Vienna Convention on
Diplomatic Relations (1961), the Antarctic Treaty (1959), and the Rome Statute establishing the
International Criminal Court (1998). Whereas some treaties create international organizations
and provide their constitutions (e.g., the UN Charter of 1945), others deal with more mundane
issues (e.g., visa regulations, travel arrangements, and bilateral economic assistance).
Treaties are also distinguished as treaties representing a definite transaction (e.g., a cession of
territory) and those seeking to establish a general rule of conduct (e.g., the ―renunciation of
war‖). Treaties also have been classified according to their subject matter or object, as follows:
(a) political treaties, including peace treaties, alliances, territorial cessions, and disarmament
treaties; (b) commercial treaties, including tariff, consular, fishery, and navigation agreements;
(c) constitutional and administrative treaties, such as the conventions establishing and regulating
international unions, organizations, and specialized agencies; (d) treaties relating to criminal

32
justice, such as the treaties defining international crimes and providing for extradition; (e)
treaties relating to civil justice, such as the conventions for the protection of human rights, for
trademarks and copyright, and for the execution of the judgments of foreign courts; and (f)
treaties codifying international law, such as the procedures for the peaceful settlement of
international disputes, rules for the conduct of war, and definitions of the rights and duties of
states. In practice, these classifications have minimum value, however, distinction between law
making treaties and treaty making contract is of some legal importance.
Some Treaties are the law-making treaties, – which lay down general rules binding on the
majority of states; and another kind is treaty-contracts, – which deal with special agreements
between parties to the treaty. The law-making treaties are a direct source of international law,
whereas treaty-contracts are not generally sources of international law, as they are intended to
create special rights and duties only between the parties to the treaty.
Law – Making Treaties as a Source

Although custom was originally the main source of international law, recently, treaties have also
become a very important source of international law. As the rules of customary international law
were inadequate to meet the needs of the dynamic world, the law-making treaties have come into
existence increasingly from the middle of the 19th century. It is considered to be a form of
international legislation.
Some writers object to the use of the term ‗law-making treaties‘ on the ground that these treaties
do not so much lay down rules of law, as set out the contractual obligations which the state
parties are to respect. Prof. Starke rightly rejects this criticism. He points out that these days, as
number of conventions and international legislative instruments are adopted by organs of
International Institutions, and therefore, they are in effect law-making. Law-making treaties
involve two distinct operations:
(i) The legislative operation, whereby rules are laid down.
(ii) The undertaking by the states to conform to such rules.
The second part of the treaty-making is subsidiary. These law-making treaties are multi-lateral
treaties. Professor James Brierly defines law-making treaties as ―….. those which a large number
of state have concluded for the purpose either of declaring their understanding of what the law is
on a particular subject, or of laying down a new general rule for future conduct, or of creating
some international institutions‖.27 Of late, there have been a number of law-making treaties
dealing with Red Cross, weights and measures, suppression of slave trade, aerial navigation,
international waterways, the pacific settlement of international disputes, etc.
27
James Brierly, The Law of Nations: An Introduction To The International Law Of Peace (Oxford University
Press, 1963).

33
Treaty-Contracts as a Source
Although treaty-contracts are not generally regarded as sources of international law, yet, in the
following three cases, they may lay down rules of international law:
(i) A series if treaty-contracts or repetition of the same rule in several treaty-contracts might
produce a principle of custom, and thus become a source of law. For example, a series of
bilateral extradition treaties entered into during the 19th century became a pattern of
general rules of international law regarding extradition.
(ii) Originally, treaty-contracts may be entered into between a limited numbers of states, but
subsequently if several states accept or imitate them, them such treaty-contracts may
develop into customary rules of international law.
(iii) A treaty-contract might operate as evidence of the existence of a rule of law which has
developed by an independent process. Walter Phillimore in his Commentaries upon
International Law has observed that a principle of international law acquires additional
force from having been solemnly acknowledged as such in the provisions of public treaty.
(C) SIGNIFICANCE OF TREATIES

Treaties can play the role of contracts between two or more parties, such as an extradition treaty
or a defence pact. They can also be legislation to regulate a particular aspect of international
relations, or form the constitutions of international organisations. Whether or not all treaties can
be regarded as sources of law, they are sources of obligation for the parties to them.
Article 38(1)(a), which uses the term "international conventions", concentrates upon treaties as a
source of contractual obligation but also acknowledges the possibility of a state expressly
accepting the obligations of a treaty to which it is not formally a party. For a treaty-based rule to
be a source of law, rather than simply a source of obligation, it must either be capable of
affecting non-parties or have consequences for parties more extensive than those specifically
imposed by the treaty itself.
Treaty International Legislation

Treaties can play the role of contracts between two or more parties, such as an extradition treaty
or a defence pact. They can also be legislation to regulate a particular aspect of international
relations, or form the constitutions of international organisations. Whether or not all treaties can
be regarded as sources of law, they are sources of obligation for the parties to them. Article
38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source
of contractual obligation but also acknowledges the possibility of a state expressly accepting the
obligations of a treaty to which it is not formally a party.
For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must
either be capable of affecting non-parties or have consequences for parties more extensive than

34
those specifically imposed by the treaty itself. Countries that do not sign and ratify a treaty are
not bound by its provisions.
Treaty provisions may form the basis of an international custom

Nevertheless, treaty provisions may form the basis of an international custom in certain
circumstances, provided that the provision in question is capable of such generalization or is ―of
a fundamentally norm-creating character,‖ as the ICJ termed the process in the North Sea
Continental Shelf cases (1969). A treaty is based on the consent of the parties to it, is binding,
and must be executed in good faith. The concept known by the Latin formula pacta sunt servanda
(―agreements must be kept‖) is arguably the oldest principle of international law. Without such a
rule, no international agreement would be binding or enforceable. Pacta sunt servanda is directly
referred to in many international agreements governing treaties, including the Vienna
Convention on the Law of Treaties (1969), which concerns treaties between states, and the
Vienna Convention on the Law of Treaties between States and International Organizations or
Between International Organizations (1986).
Treaties as the result of codifying existing customary law

Some treaties are the result of codifying existing customary law, such as laws governing the
global commons, and jus ad bellum. While the purpose is to establish a code of general
application, its effectiveness depends upon the number of states that ratify or accede to the
particular convention. Relatively few such instruments have a sufficient number of parties to be
regarded as international law in their own right. The most obvious examples are the 1949 Geneva
Conventions for the Protection of War Victims.
Most multi-lateral treaties fall short of achieving such a near universal degree of formal
acceptance, and are dependent upon their provisions being regarded as representing customary
international law and, by this indirect route, as binding upon non-parties. This outcome is
possible in a number of ways:
1. When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in
terms of the treaty provision. A notable example is the Vienna Convention on the Law of
Treaties 1969, which was considered by the ICJ to be law even before it had been brought into
force.
2. When a customary rule is in the process of development, its incorporation in a multilateral
treaty may have the effect of consolidating or crystallising the law in the form of that rule. It is
not always easy to identify when this occurs. Where the practice is less developed, the treaty
provision may not be enough to crystallise the rule as part of customary international law.
3. Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption
in the practice of states, and it is the subsequent acceptance of the rule by states that renders it
effective as part of customary law.

35
4. If a broad definition is adopted of state practice, the making of a treaty would fall within the
definition. Alternatively, it is possible to regard the treaty as the final act of state practice
required to establish the rule in question, or as the necessary articulation of the rule to give it the
opinio juris of customary international law.
5. Convention-based "instant custom" has been identified by the ICJ on several occasions as
representing customary law without explanation of whether the provision in question was
supported by state practice. This has happened with respect to a number of provisions of the
Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could
deny to third parties the normal consequences of non-accession to the treaty.
JUS COGENS (PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW)

A number of rules of international law are part of the Latin concept of "jus cogens", also referred
to as peremptory norms, and meaning "the compelling law". Recently, it is increasingly being
recognized that there are certain peremptory principles of international law from which there
could not be any derogation. A peremptory norm or jus cogens (Latin for "compelling law" or
"strong law") is a principle of international law considered so fundamental that it overrides all
other sources of international law, including even the Charter of the United Nations.
The peremptory norm of general international law is a now accepted and recognized by the
international community of general international law states as a whole as a norm can be modified
only by a subsequent norm of general international law having the same character. Article 53 of
the Vienna Convention on the Law of Treaties confirms this view. The principle of jus cogens is
enshrined in Article 53 of the Vienna Convention on the Law of Treaties: ‗For the purposes of
the present Convention, a peremptory norm of general international law is a norm accepted and
recognised 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 53). The principle prohibiting unlawful use
of force, contrary to the United Nations Charter is an illustration of Jus Cogens. Article 53 of the
Convention also provides that a treaty is void at the time of its conclusion if it conflicts with Jus
Covens.
Rules of jus cogens generally require or forbid the state to do particular acts or respect certain
rights. However, some define criminal offences which the state must enforce against individuals.
Generally included on lists of such norms are prohibitions of such crimes and internationally
wrongful acts as waging aggressive war, war crimes, and crimes against humanity, piracy,
genocide, slavery and torture. The evidence supporting the emergence of a rule of jus Cogens
will be essentially similar to that required to establish the creation of a new rule of customary
international law. Indeed, jus cogens could be thought of as a special principle of custom with a

36
superadded opinio juris. The European Court of Human Rights has stressed the international
public policy aspect of the jus cogens.
Jus cogens status is the highest status that can be attained by any principles or norms in
international law. Jus cogens status is given only to the most fundamental rules of international
law, which are recognised and accepted by the international community as rules from which no
exceptions can be made (article 53 of the Vienna Convention on the Law of Treaties). All states
are obliged to follow jus cogens rules at all times. Crimes which have attained the status of jus
cogens are particularly outrageous crimes, which are seen as affecting the international
community as a whole, such as genocide, slavery and torture.
Erga omnes
A number of particularly heinous crimes - normally those that are categorised as violations of jus
cogens rules - give rise to so called "erga omnes" obligations. Erga omnes is another Latin
concept and means "towards all". Just as the jus cogens crimes, the crimes that give rise to erga
omnes obligations are seen as affecting the international community as a whole, and
consequently all states in the world have an obligation to take action against the perpetrators of
such crimes. For example, states should search for and prosecute the perpetrators. This obligation
follows from what is called the principle of universal jurisdiction - all national courts in the
world can put perpetrators of erga omnes crimes to trial.
Both states and individuals can be held responsible for erga omnes crimes.
Examples of jus cogens and erga omnes crimes

1. Aggression
2. Illegal use of force
3. Slavery
4. Racial discrimination
5. Apartheid
6. Torture
7. Piracy
8. Violations of the basic norms of international humanitarian law
9. Violations of the right to self-determination
10. Genocide
11. Crimes against humanity
12. Most war crimes

37
CHAPTER 6
GENERAL PRINCIPALS OF LAW AS RECOGNIZED BY

CIVILIZED STATE
MEANING AND NATURE OF GENERAL PRINCIPLES OF LAW28
In relation to principles as a source of law, Article 38 of the ICJ Statute reads:
1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:....
c. the general principles of law recognized by civilized nations;...
Reflecting on this, one authority has written: "Writers disagree on the substance and content of
general principles of law, as well as on their legal scope and relationship with the other main
sources, namely treaties and customary law.
"Some authors link these principles with the idea of natural law. Some others, basing their views
on arbitral compromises from the 19th century, connect them with equity. Following Grotius in
this respect, Charles Fenwick was of the opinion that these principles were deduced from the
fundamental principles of morality and justice, together with the more specific principles from
civil law codes and from Anglo-Saxon Common law of judicial precedents.
"Some authors see in the inclusion of general principles in Article 38 of the statute of the Hague
Court, a defeat of positivism, i.e., an indication of the impossibility of reducing the entire system
of international law to the will of the States. On the contrary, some other authors consider these
principles as precepts of positive law, because of their being recognized by civilized nations‘ and
being rules in force in municipal legal systems of States. A third group of writers tend to reduce
the application of these principles to the private law analogy or to legal reasoning in general."29
The Restatement, Section 102(4) reads:
(4) General principles common to the major legal systems, even if not incorporated or reflected
in customary law or international agreement, may be invoked as supplementary rules of
international law where appropriate.
28
Bin Cheng (1953) General principles of law: as applied by international courts and tribunals; Christopher A. Ford,
Judicial discretion in international jurisprudence: Article 38(1)(C) and "general principles of law" , in 5 Duke
Journal of Comparative & International Law 35-86, (1994).
29
V. D. Degan, Sources of International Law , (Nijhoff, 1997) pp. 14-15.

38
The comments and illustrations to this section include these thoughts;
"General principles as secondary source of law: Much of international law, whether customary or
constituted by agreement, reflects principles analogous to those found in the major legal systems
of the world, and historically may derive from them or from a more remote common origin....
...General principles common to systems of national law may be resorted to as an independent
source of law. That source of law may be important when there has not been practice by states
sufficient to give the particular principle status as customary law and the principle has not been
legislated by general international agreement.
"General principles are a secondary source of international law, resorted to for developing
international law interstitially in special circumstances. For example, the passage of time as a
defense to an international claim by a state on behalf of a national may not have had sufficient
application in practice to be accepted as a rule of customary law. Nonetheless, it may be invoked
as a rule of international law, at least in claims based on injury to persons, because it is a general
principle common to the major legal systems of the world and is not inappropriate for
international claims. Other rules that have been drawn from general principles include rules
relating to the administration of justice, such as the rule that no one may be judge in his own
cause; res judicata; and rules of fair procedure generally. General principles may also provide
‗rules of reason‘ of a general character, such as acquiescence and estoppel, the principle that
rights must not be abused, and the obligation to repair a wrong. International practice may
sometimes convert such a principle into a rule of customary law."
It is interesting to note that the troublesome reference to "civilized nations" in the ICJ statute has
evolved into the gentler "common to the major legal systems" in the Restatement.
ORIGIN OF THE GENERAL PRINCIPLES
The expression of this concept is more familiar to Civilians than it is to common lawyers. Most
civil codes have a statement to the effect that in the absence of express law, judges can turn to
general principles to resolve disputes.
Chilean Civil Code, Article 24 : The provision is in French-hence omitted
The Civil Code of Quebec: mentions, in harmony with the Charter of human rights and freedoms
and the general principles of law, governs persons, relations between persons, and property.
Code Civile Suisse, Article 4: The provision is in French-hence omitted
BASIS AND SCOPE OF GENERAL PRINCIPLES OF LAW

The general principles of law recognized by civil nations are to be applied by analogy, and
would be derived by selecting concepts common to all systems of municipal law. By applying

39
private law analogy, wherever there is a lacuna in international law. The applicable rule of law
may be ascertained. The problem of non-liquate, i.e., the powerlessness of an international court
to decide a case legally because of inability to find any rule of law, is said to be solved by the
Statute to the International Court of Justice providing these general principles as sources of law.
For example, the principle of Res Judicata or which is a concept known to municipal law, has
been applied in Chorzow Factory Case. Similar, the general principles of subrogation or the
private law doctrine of trust are also applied by International Tribunals. The International Court
of Justice has applied the principle of estoppels in the case conceding the Temple of Preah Viher
(I.C.J. Reports 1964, 6).
The words ―general principles of law recognized by civilized nations‖ have been interpreted in
the following seven ways:
1. General principles of justice.
2. Natural law.
3. Analogies derived from private law.
4. General principles of comparative law.
5. General principles of International law.
6. General theories of law.
7. General legal concepts.
According to Prof. Starke, the provision for applying general principles has been regarded as
sounding the death-knell of positivism. The positivist view that custom and treaties alone are the
sources of international law is rejected by the statute of the International Court of Justice, and the
general legal principles are recognized as the source of international law. The scope of general
principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and
controversial but may include such legal principles that are common to a large number of
systems of municipal law. Given the limits of treaties or custom as sources of international law,
Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and
prevent a non liquet by reference to the general principles.
In earlier stages of the development of international law, rules were frequently drawn from
municipal law. In the 19th century, legal positivists rejected the idea that international law could
come from any source that did not involve state will or consent, but were prepared to allow for
the application of general principles of law, provided that they had in some way been accepted
by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general
principles "recognised" by states. An area that demonstrates the adoption of municipal
approaches is the law applied to the relationship between international officials and their
employing organisations,30 although today the principles are regarded as established international
law.
30
Amerasinghe, C., Law of International Civil Service, 2nd edn, vol. 1 (Clarendon Press: Oxford, 1994) at 151-8.

40
The significance of general principles has undoubtedly been lessened by the increased intensity
of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and
equity have been employed in the adjudication of international disputes. For example, a state that
has, by its conduct, encouraged another state to believe in the existence of a certain legal or
factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation
in its dealings.31 The principle of good faith was said by the ICJ to be "[o]ne of the basic
principles governing the creation and performance of legal obligations".32 Similarly, there have
been frequent references to equity.33 It is generally agreed that equity cannot be employed to
subvert legal rules (that is, operate contra legem).34 This "equity as law" perception is reinforced
by references to equitable principles in the text of the United Nations Convention on the Law of
the Sea 1982, though this may be little more than an admission as to the existence, and
legitimation, of the discretion of the adjudicator.
However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as "general" signify
that, if rules were to be adapted from municipal law, they should be at a sufficient level of
generality to encompass similar rules existing in many municipal systems. Principles of
municipal law should be regarded as sources of inspiration rather than as sources of rules of
direct application.35
NON LIQUET UNDER INTERNATIONAL LAW
A non liquet is a situation where there is no applicable law. That is to say, a court comes to the
conclusion that the situation engaged in a case has no answer from the governing system of law.
This is of particular relevance to international law since international courts, be it the ICJ or ad
hoc tribunals, cannot invent law to redress a lacuna. As has now become the practice, the last
resort that can be taken recourse to in deciding contentious cases is the widely accepted law of
civilized nations.36 The ex aequo et bono jurisdiction has to date never been accepted by states,
and it can be believed that states would never accept it. Thus, absence of determinable
international law leads to the court declaring something non liquet. But it has been argued by
many that invoking of the non liquet doctrine is opposed to the notion of law being a complete
system with no loose ends anywhere to be tied. Note that municipal courts enforcing
international law are not constrained to declare an area non liquet.
31
See North Sea Continental Shelf cases, note 6 at 26; Flegenheimer Claim 25 ILR 91; Case Concerning the Temple
of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Reports 6 at 32-3
32
Nuclear Tests Cases (Australia v France; New Zealand v France) [1974] ICJ Reports 253 at 268.
33
River Meuse Case (Netherlands v Belgium) PCIJ Reports Series A/B No 70 76 at 76 per Judge Hudson
34
Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali) (Judgment) [1986] ICJ Reports 554 at
567-8; North Sea Continental Shelf cases, note 6 at 46-50
35
International Status of South-West Africa (Advisory Opinion) [1950] ICJ Reports 128 at 148.
36
see generally Barcelona Traction, as accepting the doctrine of estoppel as part of international law

41
CHAPTER 7
SUBSIDIARY OR OTHER SOURCES OF INTERNATIONAL

LAW
(A) Categories of the subsidiary or other sources

(B) Judicial Decision and Juristic Opinions
(B) Writers Opinion
(C) Consideration of Equity and Humanity
(D) Resolutions of International Organization as soft law.
(A) CATEGORIES OF THE SUBSIDIARY OR OTHER SOURCES
The UN Charter designates the ICJ as the international law court for the world. Its main mission
is to settle disputes between nations and its holdings are the strongest statement of what
international law is in a particular situation. The ICJ has a dual jurisdiction: it decides, in
accordance with international law, disputes of a legal nature that are submitted to it by States
(jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the
request of the organs of the United Nations or specialized agencies authorized to make such a
request (advisory jurisdiction). Article 38 mentions three principal sources and mentions that
"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". Thus, apart from three
principal sources of international law, the judicial decision and juristic work can be used as some
sort of subsidiary sources. This is recognised under the ICJ Statute and there are some factors
they can also prove as source or evidence of International Law.
(B) JUDICIAL DECISIONS AND JURISTIC WRITINGS
According to Article 38(1) (d) of its Statute, the ICJ is also to apply "judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law". The article is very clear that the judicial decisions (not
mentioned as national or international) and juristic work is a subsidiary means of determination
of law. Thus, the decisions of international and municipal courts and the publications of
academics can be referred to, not as a source of law as such, but as a means of interpreting the
law established in other sources. In practice the International Court of Justice does not refer to
domestic decisions although it does invoke its previous case-law. It is difficult to explain what
influence these materials have on the development of the law. Pleadings in cases before the ICJ
are often replete with references to case law and to legal literature. Decisions that might be
sources of international law are of three kinds:

42
1. Decisions of the international judicial tribunals

2. Judicial decisions of state Courts
3. Decisions of international arbitral tribunals
Each of these three sources is briefly considered below.
Decision of the International Judicial Tribunals
The International Court of Justice, which succeeds the former Permanent Court of International
Justice, is the only permanent judicial tribunal at present. The decisions of these Courts are
sources of international law, though not in the sense in which a judicial precedent is a source of
English law. A decision of the International Court of Justice is not an authoritative precedent. It
does not create a binding rule of international law. The International Court of Justice is not
bound by its prior decisions. However, such decisions are used by the court for guidance as to
the law. As a general practice, it follows a series of its prior decisions, though it is not bound to
do so. Besides, the International Court regards itself to be free to develop international law. But
at the same time, international lawyers have always considered the judgments and the opinions
of the International Court to be an authoritative source of law.
There is no rule of stare decisis in international law. The International Court of Justice often
considers the draft Articles on international law published by the International Law Commission
as authoritative statements on international law. Often they will consider General Assembly
resolutions as indicative of customary international law.
Judicial Decisions of State Courts

Judicial decisions of state Courts are responsible for the formation of the rules of international
law in the following two ways:
a) These decisions are generally regarded binding authorities on the law of nations as
understood in to courts of that country.
b) These decisions (as already pointed out) may lead directly to the growth of customary
rules of international law. This growth of customary international law will result if there
is a concurrence of such decisions.
Decisions of International Arbitral Tribunals

There is a serious controversy as to whether the decisions of international arbitral tribunals
should be considered as a source of international law at all. Some writers hold that the arbitrators
act as negotiators or diplomatic agents, rather than as judges. It is said that the compromise
element influences the decisions rather than the rules of law.
Though there is an element of truth in this conception of arbitral decisions, yet, in practice, the
position is different. Generally arbitrators act as judges rather than as mere negotiation to the

43
position is different. Generally arbitrators act as judges rather than as mere negotiators. Thus, for
instance, the following cases have made a notable contribution to the development of
international law:
(a) The Albania Claims Arbitration Case
(b) The Behring Sea Fisheries Arbitration Case
(c) The North Atlantic Fisheries Case.
(d) Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977)
In this last case, Texaco went to Libya, planned for the worst and got an agreement that Libya
wouldn‘t nationalize the oil fields or refineries. A contract between a corporation and a foreign
government is not international law. It‘s much better to get an agreement between the US
government and the foreign government. Otherwise, international legal standards won‘t apply
unless there is some other way to get international jurisdiction, and you can easily wind up
getting screwed by the foreign government. Be wary of even the most highly-paid corporate
lawyers‘ advice on international law matters. In the experience of professional diplomats, many
if not most corporate lawyers are clueless about the realities of international law.
Texaco‘s lawyers put in the contract that the applicable law was Libyan law that was in accord
with international law principles, and any blanks would be filled with international law, and
disputes would be decided by international arbitration, not by the Libyan courts. Libya tried to
nationalize the fields and refineries, so they went to the International Arbitration Court. The
court said that UN resolutions are of varying weight. Not all represent clear agreement. But
Resolution 1803 of 1962 was a clear agreement that Libya would have to compensate Texaco. It
had no unfettered right to take the facilities without compensation. They had to find Libyan law,
but Surah 5 of the Koran was part of it, and it said you had to perform your contracts.
There is no generally-recognized right to property in international law.
(C) JURISTIC WORKS

Juristic works are not an independent source of law. They are only a means of throwing light on
the rules of international law and rendering their formation easier. The juristic works are
generally evidence of law, rather than the source of law. It is possible that the writing of a great
jurist may become a source of law if it is subsequently embodied in customary rules of
international law.
There is only one exceptional case when juristic opinion assumes importance. Where there are
no established customary rules or treaty rules, juristic opinion may be considered as an
independent source of law. The Privy Council In re Piracy Jure Pentium depended on juristic
opinion in ascertaining whether actual robbery was an essential element of piracy at international
law. Having seen that juristic opinion considered that actual robbery was not an essential in
Piracy Jure Pentium, they decided so. But in the same case, the Privy Council was of the opinion

44
that for ascertaining juristic opinion, it was not enough to seek the opinion of some great works,
but a consensus of opinion must be looked at.
Opinio Juris and the Lotus Case (1927)
Facts of The Case: THE French mail steamer, the Lotus, collided on the high seas with a
Turkish ship. It was alleged that the collision was due to the gross negligence of the officer of the
watch on board the Lotus. The result was that the Turkish ship sank, and eight Turkish nationals
on board died. The collision took place on the high seas. Subsequently, the crew members of the
Lotus were taken to Constantinople. The Turkish authorities instituted proceedings against the
officer of the watch, basing their claim to jurisdiction on the ground that the act of negligence on
board the Lotus had produced effects on the Turkish ship, and according to the objective
territorial principle, the Turkish authorities were justified in exercising the jurisdiction. France
protested against this exercise of jurisdiction by the Turkish authorities. The dispute was referred
to the Permanent Court of International Justice. By a majority decision, the Permanent Court
held that the action of Turkish authorities was not inconsistent with international law.
Significance:
This case is also an authority on the ‗floating island‘ theory of a ship. The International Court of
Justice considered the effect of the negligence on the Turkish ship to be an effect on an operation
of Turkish authority, and therefore, the objective territorial principle was applicable. It was also
pointed out in this case that no presumption of immunity arises from the fact that the person
against whom the proceedings are taken is a foreigner.
However, one of the judges in this case pointed out that an article of the Turkish Penal Code,
whereby jurisdiction was asserted over foreigners committing offences abroad ―to the prejudice‖
of a Turkish subject, was contrary to international law. According to him, the passive nationality
principle of jurisdiction was not to be generally accepted. The same view is also supported in the
cutting case.
It may be noted that the objective territorial principle of jurisdiction as laid down in the Lotus
case was not generally acceptable to mariners, and it has been disapproved by the Conference at
Brussels in 1962, which adopted the Convention for the unification of certain rules relating to
Penal jurisdiction in matters of collision and other incidents of navigation. It may also be noted
that the International Law commission has disapproved of the rule laid down in the Lotus case.
This case is also significant in that the Permanent Court of International Justice had recourse to
juristic opinion for ascertaining the existence or non-existence of a customary rule. This is also
significant in view of the fact that the court refused to deduce a customary rule where state
judicial decisions on the point were divided.

45
It must be noted; however, that the principle lay down in the Lotus Case has not been approved
by the International Law Commission. The Brussels Convention for the Unification of Certain
Rules relating to Penal Jurisdiction in Matters of Collision and other incidents of Navigation,
now provides for the exclusive jurisdiction of the flag state in penal or disciplinary proceedings
out of collision cases, subject to penal and disciplinary jurisdiction being conceded to a non-flag
state over an accused person of its nationality.
GENERAL PRINCIPLES OF LAW AND EQUITY
There aren‘t that many of these:

1. Promises are binding — there is an obligation to perform in good faith.
2. Clean hands — you can‘t take advantage of your own wrongdoing.
3. Estoppel is always out there to slam you. Especially if you are foolhardy enough to
attach a map to an agreement (dangerous).
Never agree to a document when there is something in it you don‘t understand. It‘s nice to be
polite, but it is better to be right & useful than to be liked & dangerously incompetent.
Two big ones: Considerations of Equity, and Considerations of Humanity.
All mature legal systems have equitable principles.
Meuse case, Netherlands v. Belgium (1937)

Belgium was prevented from suing France for breaching its agreement not to build a dam, when
Belgium had breached the same agreement.
Under Article 38, equity is part of international law.
United Kingdom v. Albania (1949) known as Corfu Channel case

Albania, the most xenophobic country ever, with a pillbox every half mile in anticipation of an
invasion that has never come, littered the Strait of Corfu with mines. Then it didn‘t tell anyone.
Some British ships got blown up, and they also fired at British ships from shore batteries. The
ICJ held that elementary considerations of humanity are binding as customary international law.
Therefore, laying mines require you to tell those who sail there. Failing to notify violates
elementary considerations of humanity.
(D) DECISIONS AND DETERMINATIONS OF THE ORGANS OF

INTERNATIONAL ORGANISATIONS
Decisions and determinations of the organs of international organization may head to the
following six ways:
(1) They may represent intermediate or final steps in the evolution of customary law. For
example, a rule has developed regarding the procedural practice of the United Nations

46
Security Council that an abstention by a member state from voting is not to be deemed a
non-concurring vote, for the purpose of determining whether a decision on a non-procedural
question has been validly taken by the Security Council according to the voting
requirements. Similarly, as a result of a resolution in 1952 of the United Nations General
Assembly, the rule that the dependent people are entitled to self-determination has been
formulated.
(2) A resolution of one of the organs of international institutions laying down regulations for the
internal working of the particular institution may have full legal effect as laying down rules
which are binding on the members and organs of the United Nations.
(3) In doubtful cases, not clearly covered by its constitution, an international institution has
inherent power to determine the limits of its own competence. Such decisions by
international institutions on question of jurisdiction may have a law-making effect.
(4) Sometimes, organs of international institutions are authorized to give binding determination
concerning the interpretation of their constituent instruments. These interpretative decisions
then form part of the law of international institution in question.
(5) Some organs of international institutions are empowered to give general decisions of dues-
legislative effect binding on all the members to whom they are addressed.
(6) Quite often, opinions of Committees of jurists specially instructed by the organs of an
international institution to investigate a legal problem may have immense weight and
authority. For example, the opinion of the Committee of Jurist appointed in 1920 by the
League of Nations Council, to advise on the question of the Aaland Island, that a convention
of 1866 whereby Russia agreed not to fortify the Aaland Island, created a special military
status conferring right on interested adjoining states (although not parties to the convention)
has been cited with approval in several leading text-books.
Cases
Western Sahara Case (1975) — General Assembly Resolutions cited for the proposition that
free-association and self-determination are norms of international law.
Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977) — The legal value of UN
resolutions can be determined on the basis of the circumstances under which they were adopted,
and by analysis of the principles they state.
(E) INTERNATIONAL DECISIONS IN MUNICIPAL LAW

In U.S., they use stare decisis, unlike civil law countries. Article 59 of the Statute of the ICJ,
however, says that ICJ decisions are binding only on the parties to the dispute. And yet, ICJ
cases are cited over and over as representing international law. Not because of stare decisis,
however, but because it was a well-reasoned cases those countries keep pointing to as evidence
of international law. It is not law just because the ICJ says so in one case. It may come to be
regarded as law, however.

47
Often, arbitration tribunals and ―municipal courts‖ (such as the US S. Ct.) are also cited as
sources of international law, even though their decisions are not binding on other countries.
Foreign law journals (not U.S. law-school journals) and the U.S. Restatement of International
Law are often cited. These are never enough by themselves — they are only academic opinions
of what the law is. They are still of some use, nevertheless.
Filartiga v. Pena-Irala (2d Cir. 1980)
A Paraguayan official tortured to death a 17-year-old Paraguayan boy, because of the boy‘s
father‘s political beliefs. The kid‘s father and sister sued in U.S. District Court! Under the 1789
Alien Tort Statute, under which only aliens may sue, for a tort in violation of the ―law of
nations‖ (international law).
In US there is also Torture Victim Protection Act, which also protects Americans. The District
Court dismissed the case for lack of jurisdiction. the 2d Circuit, however, concluded that if
torture violated the law of nations, and alien could sue another alien in U.S. courts and collect
damages. To see if torture violates international law, the 2d Circuit turned to two UN General
Assembly declarations.
The Universal Declaration of Human Rights, one of the first acts of the UN, and arguably one of
the greatest documents of all time (unanimous, abstentions from South Africa, USSR and other
SSRs, Yugoslavia, and Saudi Arabia), and which has been embellished over time.
The 1975 Declaration on the Protection of All Persons from Torture
A Declaration creates an expectation of adherence, and so far as the expectation is gradually

justified by national practice, a declaration may by custom become recognized as laying down
rules binding on all countries.
These mere declarations have been foundations for treaties and conventions which took these
rights and built on them and codified them as international law. All of them say that torture is a
human rights violation. (Time was, torture was just good police work, but no more. Now it is
universally renounced.) Not only is this customary international law, but it is a fundamental
principle that cannot be limited.
So the 2d Circuit entered a judgment, and assessed compensatory & punitive damages. The
defendant escaped the US before the judgment could be enforced, but if he or any of his property
returns it is subject to jurisdiction. (We actually deported him. Communications between the
agencies are not fantastic.)
This was not a suit against the Paraguayan government because of an official actor — Paraguay
had denounced the defendant, even though he had been acting under the color of authority.

48
As result of this case, the Alien Tort Statute has been used more frequently. See the judgment
entered against Radovan Karadzic [70 F.3d 232 (2d Cir. 1995)] for genocide. (That case has a
good discussion of the sources of international law and affirms that these are real rules binding
on us, and states that certain forms of conduct violate the law of nations regardless of whether
undertaken by those acting under the auspices of a state or only as private individuals.)
CASE LAW AND SECONDARY MATERIALS IN US
The ICJ Statute Article 38 displays the traditional Civil Law perception of case law, that it is a
strong form of persuasive authority, but of no greater weight than the writings of experts in
journals and books. It is hard for a Common Law trained lawyer to swallow this. Section 103 (2)
of the Restatement shows a more modern understanding of the value of case law:
"(2) In determining whether a rule has become international law, substantial weight is accorded
to
(a) Judgments and opinions of international judicial and arbitral tribunals;
(b) Judgments and opinions of national judicial tribunals;
(c) The writings of scholars"
The explanatory Comment states:
"Article 59 of the Statute of the International Court of Justice provides: ‗The decision of the
Court has no binding force except between the parties and in respect of that particular case.‘ That
provision reflects the traditional view that there is no stare decisis in international law. In fact, in
the few permanent courts, such as the International Court of Justice, the Court of Justice of the
European Communities, and the European Court of Human Rights, there is considerable
attention to past decisions.... ...In any event, to the extent that decisions of international tribunals
adjudicate questions of international law, they are persuasive evidence of what the law is. The
judgments and opinions of the International Court of Justice are accorded great weight.
Judgments and opinions of international tribunals generally are accorded more weight than those
of domestic courts, since the former are less likely to reflect a particular national interest or bias,
but the views of national courts, too, generally have the weight due to bodies of presumed
independence, competence, impartiality, and authority."
International Courts
International Law case law developed within a tradition of ad hoc tribunals established by
agreements to arbitrate particular disputes, and a permanent "Court of Arbitration" was
established at The Hague in 1899. This led to the creation of the Permanent Court of
International Justice, established as an organ of the League of Nations in 1919. After World War
Two, the PCIJ was replaced by the less ironically named International Court of Justice. A
number of subject specific and/or regional institutions have developed international court

49
systems within their structures. These include the courts related to the European Union, the Inter-
American Court of Human Rights, the European Court of Human Rights, the Law of the Sea
Tribunal, the WTO Tribunal, etc. The most recent truly international tribunal is the International
Criminal Court, created in 1998.
While finding the case law of these institutions may seem relatively straightforward, some of the
judicial systems are structured in ways that may seem odd to a novice. Opinions may be from an
intermediate step rather than the final step in a proceeding. It is important to know the structure
so you know the full authority of the text in hand.
The International Court of Justice
This is the "world court", the single main tribunal for settling disputes between nations. Its
decisions are considered the strongest statement on what international law is in the disputed
situation. In 1996 a fancy coffee-table book on the history of the court was published which
serves as a good historical introduction.
European Courts
The first thing to remember in regard to the regional courts in Europe is that there are two
distinct systems. One is connected to the European Union (known for years as the European
Communities) and handles issues related to the commercial and social effects of the EU system.
The other is related to the Council of Europe and is devoted primarily to human rights and has no
relationship to the European Union. There are areas where an outsider might be confused as to
which court might take jurisdiction over a dispute. To make things worse, both Lexis and
Westlaw have files which combine the decisions of these court systems, reinforcing the
temptation to confuse them. It may be helpful to remember that the European Court of Justice
(EU) is based in Luxembourg, while the European Court of Human Rights is based in
Strasbourg. These two distinct and separate systems of courts work within the European
framework. The first court system, the European Court of Justice (ECJ), based in Luxembourg,
is associated with the EU handling commercial and social effect issues within the EU. The
second court system, the European Court of Human Rights, based in Strasbourg, is the system
associated with the Council of Europe and dealing principally with human rights issues. These
two systems bear no relationship to each other.
The Court System of the European Union
The European court system has evolved over the years. It originally had formal decision-making
roles for a commission, for the Advocate-General, and for the Court. This has changed into a
two-step procedure centering on the Court of the First Instance and the Court itself. Texts which
appear as decisions within the European Union judicial system may be from the Commission, the
Court of the First Instance, or the European Court of Justice. Older cases may have had an

50
opinion of the Advocate-General as well, but Court has stopped printing them in the official
reporter.
The European Court of Human Rights, Strasbourg
The ECHR is a product of the European Convention on Human Rights and is administered
through the Council of Europe. There used to be a two-step commission / court structure, but the
commission as a required preliminary hearing was dropped last year and there is now a "single
court system". The adoption of the principles of the convention into domestic law was one of the
early objectives of the drafters. Different countries have done this at different speeds. England
will be incorporating the Convention into its domestic law later this year, although they signed
the treaty in 1950.
The Court System of the European Union

The ECJ is set up as a two-step procedure centering on the Court of the First Instance and the
ECJ itself. Decisions within the European Union system may be from the Commission, the Court
of the First Instance, or the ECJ. However, older cases may have had an opinion of the
Advocate-General as well, but the ECJ has stopped printing those decisions in the official
reporter. Since 2005, cases involving EU civil service have been heard by the Civil Service
Tribunal. These cases where originally heard by the ECJ and following its creation in 1989, by
the Court of First Instance. The Civil Service Tribunal may not hear and determine cases
between national administrations and their employees.
Inter-American Court of Human Rights

Created in 1979 under the umbrella of the Organization of American States (OAS), The Inter-
American Court of Human Rights is the OAS' autonomous judicial institution. The Courts
objective is the application and interpretation of the American Convention on Human Rights and
other treaties concerning this issue. The Court's website has a Jurisprudence page with links to
decisions and advisory opinions. It also maintains an instruments page with a comprehensive
collection of treaties, conventions, and protocols materials relating to human rights for the
Universal, Inter-American, European, and African systems. The University of Minnesota
maintains a mirror site to the Courts website.
International Criminal Court

The International Criminal Court (ICC) is an independent, permanent court established by the
Rome Statute of the International Criminal Court. The ICC tries persons accused of the most
serious crimes of international concern, namely genocide, crimes against humanity and war
crimes. It is a court of last resort and will not act if a case is investigated or prosecuted by a
national judicial system, unless the national proceedings are not genuine. Today, 105 countries
are parties to the Rome Statute, but the U.S. is not one of them.

51
Domestic Courts
Many cases brought before national courts involve ascertaining international law or deciding
international law issues. The research systems used for domestic law have the capacity to find
material involving international law issues. Many of the yearbooks mentioned in the section on
custom also have sections reviewing and digesting the international law related cases within the
particular country.
Other Dispute Resolution Institutions

Many of the standard alternative dispute resolution systems are also used within the international
legal processes. The different ad hoc means of settling a dispute include Mediation, Conciliation,
and Arbitration. In that order, each one represents a greater surrender of decision making
authority to an outsider. A mediator works to get the parties to an agreement without any
authority to force either party into any action. At the other end of the spectrum, in an arbitration
the parties agree to abide by the arbitrator‘s decision even if it completely against their point of
view. Arbitration was especially important in the development of international law before the
creation of permanent international courts, and has continued to be used in sensitive situations,
like the dispute between New Zealand and France over the French Secret Service‘s limpet
mining of the Greenpeace ship "Rainbow Warrior" in a NZ harbor.
The decisions of arbitrators are a major source of case law within international law, and many
efforts have been made to collect the reports of arbitral decisions in a public and systematic way.
The only problem is that there is no formal obligation to publish the decision of an arbitration, so
they can be hard to locate. The Diamond Law Library has many decisions in full as originally
published by the parties.
Permanent Court of Arbitration, The Hague, Netherlands:
Arbitration is also the major tool for settlement of disputes between states and large international
companies, such as oil or construction companies which contract directly with states or state
enterprises. These exist in the misty area between public and private international law.

52
CHAPTER 8
INTERFACE BETWEEN MUNICIPAL AND

INTERNATIONAL LAW
(A) Question Of Relationship Or Conflict

(B) Theories As To The Relationship Between International Law & National Law-
Monism, Dualism & Transformation
(C) Conflicts Between International Law And National Law, Hierarchy
(D) Domestic Implementation Of International Norms
(E) International Law In National Court
(A) QUESTION OF RELATIONSHIP OR CONFLICT BETWEEN

INTERNATIONAL LAW AND STATE LAW
The question of the relation between intercalation law and the state law is not only of theoretical
importance, but also of immense practical importance. Firstly, the law of treaties, which affect
the state law, cannot be clearly understood unless the relation between the relations between the
state two legal systems is clearly appreciated. Secondly, very often, the municipal courts will be
confronted with the problem of giving effect to rules of international law. Sometimes, these rules
may be in conflict with the municipal law of the Courts. In such cases, it is necessary to have a
clear grasp of the relation between international law and state law. Thirdly, international courts
and tribunals may have to determine the effect of a rule of municipal law in the international
spheres. Here effect of a rule of municipal law in the international sphere. Here again, the
relation between international law and state law becomes very important.
(B) THEORIES REGARDING THE RELATION BETWEEN INTERNATIONAL

LAW AND STATE LAW
There are mainly two theories as to the relation between international law and state law. They are
known as (1) Monism and (2) Dualism.
MONISM
According to this theory, international law and state law are the components of one system of
law in general. This theory regards that law is a single unit consisting of rules, whether those
rules are binding on states or on individuals or on entities other than states. According to this
theory, both state law and international law ultimately regulate the conduct of individuals. The
only difference is that, in the case of international law as it is applicable to the international
sphere, the consequences of such conduct are attributed to the state. Prof. Kelsen maintains that
once it is conceded that international law is law, it is impossible to deny that both these legal
systems are parts of a unified system of law.

53
It is further maintained that the two legal systems must be considered to be essentially identical,
as many of the fundamental notions of international law cannot be understood, unless one starts
with the premises that the various systems of municipal law are, to some extent, derived by way
of delegation from international law. For example, the territorial jurisdictions of states, the
jurisdiction over persons, which are parts of municipal law, are essentially derived from
international law.
There are some writers like Judge Lauterpacht who take a more practical approach, and maintain
the monistic theory of the relation between the two legal systems. They start with the simple fact
that the individual lies at the root of all legal systems. Judge Lauterpacht has very aptly said, in
‗The Function of law in the international community‘, that it is true that international law is
made for states, and not states for international law, but it is true in the sense that the state is
made for human beings, and not human beings for the state.
DUALISM
According to this theory, international law, and state law are two legal systems which are
entirely different. The argument of dualist is just contrary to the argument advanced by the
Monism.
Firstly, they differ as regards the sources of International law and municipal law.
Secondly, they differ as regards the relations they regulate. Municipal Law regulates the relations
between the international law who are under the sway of states, whereas international law
regulates relations between states.
Lastly, these two legal systems differ regarding the sanction which they possess. Municipal Law,
being a law of a sovereign over individuals subjected to his sway, has a strong sanction behind it,
whereas international law, not being a law above the states, but a law between the sovereign
states, has a weaker sanction.
Oppenheim, for these reasons, was inclining to support the Dualistic theory.
Triple, an eminent writer on international law, maintained the Dualistic theory for the following
reasons: The subjects of state Law are individuals, whereas the subjects of international law are
exclusively states. Their judicial origins are also different. The source of state Law is the will of
the states, whereas the source of international law is the common will of the states.
Starke points out that the first of the above propositions is wrong, particularly, in the modern
context. Today, the subjects of international law are not exclusively states, but individuals and
entitles other than states can also be its subjects. Starke further points out that the second
proposition of Triple is misleading.

54
Anzilotti another eminent jurist, maintains that these two systems are different for the following
reasons: State law is based on the fundamental principle that state legislation is to be obeyed,
whereas international law is based on the principle, pacta sunt servanda, that is, agreements
between states are to be respected. These two systems being entirely different, no conflict
between them is possible.
As already pointed out, while discussing the positivist theory of international law, it is incorrect
to consider pacta sunt servanda as the sole basis of international law.
It may be noted that the Dualistic theory enjoys support from the positivists. But, there are also
some writers who are not positivists, and yet support the Dualistic theory. According to them, the
difference between the two legal systems lays in the fact that international law mostly consists of
customary and treaty rules, whereas municipal law consists mainly of statutes passed by the
Legislature and of judicial precedents.
WHICH LAW IS TO PREVAIL IN CASE OF CONFLICT?
The subject of the relationship between the two legal systems is closely associated with the
primacy (or superiority) of one of the legal systems over the other. The main question here is, in
case of conflict, which should prevail. Thus, if a rule of international law under a treaty
prescribes one thing and the municipal law of a state prescribes just the opposite, which should
prevail, - international law, or municipal law? The dualists maintain that, in such circumstances,
municipal law should prevail over international law.
The monists do not have a uniform opinion on this question. They are divided.
Professor Kelsen while developing the theory of pure law maintains that each law is governed
only one legal principle. There is a hierarchy of legal rules. One legal rule derives its validity and
binding force from another higher rule. For example, a rule laid down in a regulation or an order
of a government is regulated by a supreme rule laid down by an Act of the legislature. In its turn,
the Act of the legislature is governed by the rule laid down in the Constitution. Form principle to
principle and from rule to rule, a legal analysis eventually reaches one supreme fundamental
principle- which is the source and foundation of all law. According to Kelsen, this fundamental
principle may be either international law or state Law.
CRITICISM OF KELSEN‘S THEORY
This approach of Kelsen is criticized on the ground that his attitude is based on an extremely
skeptical philosophic approach. It is further pointed out by way of criticism of Kelsen that if
Monism is accepted and if supremacy is not attributed to international law; the resulting position
will be very confusing. There are hundreds of states and if the laws of each of the states are
supreme, the result would be international anarchy.

55
Further, if state law was supreme according to Kelsen, the validity of international law must be
derived from the supreme law of the state, that is, its constitution, But Constitutions appear and
disappear. Should the validity of international law also meet the same fate as that of the
Constitutions?
Again, it is a well-settled rule of international law that when a new state comes into existence
and enters into the community of nations, the rules of international law bind it without the
consent of the state. This position can hardly prove the supremacy of state Law.
ANALOGY OF A FEDERAL STATE
Though there is great truth in the statement that international law must be attributed with
superiority, it cannot be ignored that states are sovereign states and exercise great liberties.
Therefore, in conclusion, one can agree with Prof. Starke who suggests that the best solution to
this question is to apply the analogy of a federal state. In a federal state, the regional states enjoy
autonomy, and therefore enjoy superiority in certain spheres, while the federal state enjoys
superiority in other spheres, and there is the constitutional law which claims superiority over the
law of both the regional states and the federal state, and determines the sphere of superiority of
the units and the federal state. Applying this analogy in the international sphere, it can be
concluded that the state laws are supreme in certain respects and international law is supreme in
other respects, and this division of supremacy is to be determined by what may be called an
international constitutional law.
THEORIES CONCERNING THE APPLICATION OF INTERNATIONAL LAW

WITHIN THE MUNICIPAL SPHERE
There are mainly two theories regarding the application of international law within the municipal
sphere. The problem here is how the rules of international law become applicable in the
municipal sphere. Two views are possible:
One view is that any rule of international law is to be applied by municipal courts for the mere
reason that it is a rule of international law.
The other view is that there cannot be such automatic application of the rule of international law
by the municipal courts, unless such a rule has been specifically adopted or incorporated as a part
of municipal law. This is also known as the ―Transformation and Specific Adoption Theory‖.
According to this theory, which is based on the positivist concept of the rule, no rule of
international law, by its own force, can claim to be applied by municipal courts, unless such rule
has undergone the process of specific adoption or specific incorporation. This is again based on
the dualistic theory of the relation between state Law and international law. As the two legal
systems are separate and distinct, international law cannot infringe on state Law, unless the state,
by its own constitutional machinery, incorporates the rule of international law. Even in the case

56
of treaties, the rules of treaties must be transformed into state law by the legislative machinery of
the state. Unless such transformation takes place, the rules of the treaty cannot be extended to
individuals, even though the treaty may require such extension.
For example, the Berne Convention on Copyrights provides that books published in one of the
members states must enjoy copyright in any other state which is a party to the Convention, the
same copyright as the books published in such member state would enjoy. If an individual in the
other member state were to infringe the copyright of the book published in the former members
state, according to the transformation theory, the person infringing the copyright cannot be held
liable by the municipal courts, unless the provisions of the Berne Convention on Copyright have
been adopted by an Act of the local legislature. It is this Act of the local legislature alone which
makes the rules of the treaty applicable to an individual.
The following observations on the above theories may be noted:
(1) These theories are based on the positivistic theory of international law.
(2) They are also based on the Dualistic theory of international law.
(3) These theories maintain that the treaties are only promises, whereas the rules of the state
legislature are commands. Therefore, unless the promise is transformed into a command,
it will not be applicable to the individual.
These theories are criticized on the ground of artificiality. Every treaty visualized certain legal
consequences. It does not visualize merely a theoretical promise.
Delegation Theory
The delegation theory is an answer to the transformation theory discussed above. According to
this theory, there is no transformation of a rule of international law when such rule is adopted by
the legislative machinery of the state. When a treaty is entered into, a power is delegated to the
state to determine the time and the manner in which the provisions of the treaty are to be given
effect to. Therefore, when a state legislature enacts legislation in furtherance of the treaty, it is
the continuation of the treaty-making. It is another phase of a single act. It is not an act of
transformation.
STATE PRACTICES OPERATION OF INTERNATIONAL LAW IN MUNICIPAL

SPHERES
As there is considerable theoretical difference on the question of the application of international
law within the municipal sphere, it would be fruitful to examine the practices of different states
regarding the subject, under the following heads:
A. BRITISH PRACTICES
Practice Regarding Customary Rules of International Law

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The practice of the British Courts regarding the rules of customary International Law has
undergone some change during the past two centuries. An attempt is made here to trace the
development of the practice up to the present rules of practice.
In the 18th century, customary international law was deemed automatically to be part of the
Common Law. This was known as the incorporation doctrine or Blackstonian doctrine.
Blackstone was of the opinion that, the law of nations was part of the law of the land. This
incorporation doctrine was also supported by Lord Mansfield in Tribute v. Bath (1964), where
he observed that the law of nations, in its full extent, is and forms part of the law of England.
In the latter part of the 19th century, a departure was made from the above traditional view in R.v.
Key (Franconia‘s case). The majority of the Judges held that English Court could not give any
effect to any rules of international law, unless such rules were proved to have been adopted by
Great Britain in a positive manner. It was also held that if such rules of customary law conflicted
with established principles of the English Common law, English Court was not bound to apply it.
It was necessary in this case to decide whether the English Court had jurisdiction over crimes
committed by foreigners within the maritime-belt, i.e., the territorial waters extending to three
miles from the English coast. According to customary international law, the English Courts had
such jurisdiction. But the majority of the Judges in the case held that as the English Court could
not give effect to rules of international law which were not adopted by Great Britain in a positive
manner, the English Courts could not exercise jurisdiction over the foreigner. By the Territorial
Waters Jurisdiction Act of 1878, the Parliament gave jurisdiction to the English Courts in such
circumstances. But at the same time, this case threw a lot of doubt on the doctrine of
incorporation.
It was in 1905 that the Court of Appeal made an attempt to return to the incorporation doctrine in
West Rand Central Gold Mining Co. Ltd. v. R. The fact of the case is that the West Rand Central
Gold Mining Co. Ltd. was registered in England, but was working gold mines in Transvaal. Toe
parcels of gold belonging to the company were captured by the officials of the Government of
South African Republic. Under the law, the Government was bound to return the gold or pay its
price. In the meanwhile, the Boer Wean in 1899. As a result of the War, South African Republic
was conquered and annexed by the British Government. The Company presented a petition of
right to the British Government claiming return that the British Government had succeeded to all
the rights and obligations of the annexed Republic under international law.
In short at present, in Great Britain, distinction is made between customary rules of international
law, and the rules lay down by treaties. The United Kingdom takes an incorporationist view,
holding that customary international law forms part of the common law. British law, however,
views treaties as purely executive, rather than legislative, acts. Thus, a treaty becomes part of
domestic law only if relevant legislation is adopted. The same principle applies in other countries
where the English common law has been accepted (e.g., the majority of Commonwealth states
and Israel). Although the incorporationist view regards customary law as part of the law of the

58
land and presumes that municipal laws should not be inconsistent with international law,
municipal laws take precedence over international law in cases of conflict. Those common-law
countries that have adopted a written constitution generally have taken slightly different
positions on the incorporation of international law into municipal law. Ireland's constitution, for
example, states that the country will not be bound by any treaty involving public funds without
the consent of the national legislature, and in Cyprus treaties concluded in accordance with its
constitution have a status superior to municipal law on the condition of reciprocity.
B. CIVIL-LAW PRACTICES
In most civil-law countries, the adoption of a treaty is a legislative act. The relationship between
municipal and international law varies, and the status of an international treaty within domestic
law is determined by the country's constitutional provisions. In federal systems, the application
of international law is complex, and the rules of international law are generally deemed to be part
of the federal law. Although a treaty generally becomes operative only when it has been ratified
by a national legislature, EU countries have agreed that regulations and decisions emanating
from EU institutions are directly applicable and enforceable without the need for enabling
legislation—except for legislation permitting this form of lawmaking, which is adopted upon the
country's entry into the union (e.g., Britain's adoption of the European Communities Act in
1972).
C. UNITED STATES PRACTICES

The Constitution of the United States stipulates (Article VI, Section 2) that treaties ―shall be the
supreme Law of the Land.‖ Treaties are negotiated by the president but can be ratified only with
the approval of two-thirds of the Senate (Article II)—except in the case of executive agreements,
which are made by the president on his own authority. Further, a treaty may be either self-
executing or non-self-executing, depending upon whether domestic legislation must be enacted
in order for the treaty to enter into force. In the United States, self-executing treaties apply
directly as part of the supreme law of the land without the need for further action. Whether a
treaty is deemed to be self-executing depends upon the intention of the signatories and the
interpretation of the courts. In Sei Fujii v. State of California (1952), for example, the California
Supreme Court held that the UN Charter was not self-executing because its relevant principles
concerning human rights lacked the mandatory quality and certainty required to create justiciable
rights for private persons upon its ratification; since then the ruling has been consistently applied
by other courts in the United States. In contrast, customary international law was interpreted as
part of federal law in the Paquette Habana case (1900), in which the U.S. Supreme Court ruled
that international law forbade the U.S. Navy from selling, as prizes of war, Cuban fishing vessels
it had seized. Domestic legislation is supreme in the United States even if it breaches
international law, though the government may be held liable for such a breach at the international
level. In order to mitigate such a possibility, there is a presumption that the U.S. Congress will
not legislate contrary to the country's international obligations.

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Under U.S. statecraft and court decisions, the interaction between international law and U.S. law
and foreign policy is complex. Article II of the United States Constitution gives the President of
the United States the power to bind the country by treaty, ―… with the Advice and Consent of
the United States Senate, provided two thirds of the Senators present concur.‖ The Supremacy
Clause of Article VI of the Constitution states that such treaties, along with the Constitution and
laws passed by the United States Congress ―shall be the supreme Law of the Land.‖ Because
treaties and – according to various United States Supreme Court decisions – other self-executing
aspects of international law are ―the supreme Law of the Land,‖ international law is seen as
superseding all U.S. state and local laws, and all previous federal laws which might conflict with
international law. However, since under the Constitution international law is on par with (and not
superior to) U.S. federal law, subsequent federal laws which conflict with international law take
precedence. This issue was addressed by the U.S. Supreme Court in Reid v. Covert, 354 U.S. 1
(1957): ―This Court has … repeatedly taken the position that an Act of Congress, which must
comply with the Constitution, is on a full parity with a treaty, and that when a statute which is
subsequent in time is inconsistent with a treaty, the statute to the extent of the conflict renders the
treaty null.‖
In addition, the Supremacy Clause has long been interpreted by U.S. courts as meaning that any
precept of international law which conflicts with the U.S. Constitution – or any treaty into which
the U.S. enters which conflicts with a provision of the Constitution – is void within the United
States. As Justice Holmes stated in Missouri v. Holland, 252 U.S. 416, 432 (1920): ―It is said
that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the
treaty-making power, and that one such limit is that what an act of Congress could not do
unaided, in derogation of the powers reserved to the States, a treaty cannot do.‖ Likewise, in
Reid v. Covert, 354 U.S. 1 (1957), the Court states: ―There is nothing in this language [of the
Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have
to comply with the provisions of the Constitution.‖
The legal role customary international law plays in the United States is somewhat more
complicated. The ―Comments‖ to Section 111 of the Third Restatement of Foreign Relations
Law in the United States (a scholarly treatise published by the American Law Institute that
summarizes judicial decisions on the role of international law in the U.S.) state:
b. … A rule of international law or a provision of an international agreement derives its status

as law in the United States from its character as an international obligation of the United States.
A rule of international law or an international agreement has no status as law of the United States
if the United States is not in fact bound by it: for example, any rule of customary law from which
the United States may have dissociated itself during the process of its formation…
d. … International agreements of the United States other than treaties, and customary
international law, while not mentioned explicitly in the Supremacy Clause, are also federal law
and as such are supreme over State law. … Customary international law is considered to be like

60
common law in the United States, but it is federal law. [i.e., there being no ―federal‖ common
law in the U.S.]
Unlike the treaty-making power granted in Article II, customary international law is not directly
addressed in the U.S. Constitution. Article I, Section 10 gives the U.S. Congress the power to
―define and punish Piracies and Felonies committed on the high Seas, and Offences against the
Law of Nations‖ which, presumably, gives Congress the power to codify customary international
law as U.S. federal law. As a practical matter, however, Congress has rarely done so. Likewise,
with a few notable exceptions,37 the U.S. courts also have only infrequently addressed matters
relating to customary international law. Consequently, it‘s widely agreed that the President
retains wide-ranging authority to interpret official U.S. positions on this aspect of international
law.38 Nonetheless, issues such as whether customary international law supersedes existing U.S.
federal laws or whether the President can unilaterally violate customary international law under
the U.S. Constitution have not been resolved by the courts or U.S. policymakers.
Throughout the years, the United States arguably has repeatedly shifted its position on
international law; some Administrations, such as that of Franklin Delano Roosevelt and Harry
Truman were supporters, and indeed, framers, of a good deal of present international law--
through the Nuremberg Trials, the drafting of the Geneva Conventions and the chartering of the
United Nations. Other US Administrations have been less than supportive, such as the present
Bush Administration, which has declined to accede to the Rome Statute of the International
Criminal Court, due to several reasons, including issues regarding national sovereignty, lack of
trial by jury, Constitutional questions (related to the Supremacy Clause), and a fear of
prosecution of present or former Constitutional officers of the United States due to controversial
activities by US military, intelligence, and other authorities that could possibly violate
international law.
The Heritage Foundation provides one U.S. perspective on international law, stating: "As an
independent sovereign, the United States is fully entitled to interpret international law for itself.
The views of international organizations, including the United Nations, other states, and non-
governmental organizations (NGOs) may be informative, but they are not legally binding unless,
and only to the extent that, the United States agrees to be bound."39
The U.S. State Department has repeatedly acknowledged the existence of certain elements of
customary international law as being universally binding, even in the absence of a treaty. For
example, in a letter to the International Committee of the Red Cross regarding a study on certain
aspects of customary international law, the State Department Office of the Legal Adviser states:
37
Nicaragua case (Merits), note 4 at 98.
38
Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or
Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226.
39
Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Reports 6 at 39;
Asylum case, note 8 at 276.

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"We recognize that a significant number of the rules set forth in the Study are applicable in
international armed conflict because they have achieved universal status, either as a matter of
treaty law or – as with many provisions derived from the Hague Regulations of 1907 –
customary law." This statement of official US policy is reinforced by the past and present actions
of the US government. As noted above, however, U.S. interpretation of what customary
international law is and requires of states is largely determined by the President, and advised by
the U.S. State Department's Office of the Legal Adviser.
The United States, has, at many times, led or participated in the prosecution of war crimes,
crimes against the laws and customs of war, and crimes against humanity, including the
prosecution of its own military personnel for breaches of the laws of war. In addition, this has, at
times, included the prosecution of crimes of leaders of other nations, including leaders of other
nations who were not bound by treaty to not engage in the crimes they committed or were
alleged to have committed, but were instead prosecuted under customary international law. One
example of this is the US-led prosecutions of Nazi war criminals at the International Military
Tribunal at Nuremberg, following World War II. Crimes against humanity and genocide did not
exist as explicit crimes proscribed by treaty prior to the Second World War; the Nazi leaders who
were tried were not bound by any treaties forbidding such acts. (The only treaties related to the
treatment of individuals the Nazi state subscribed to were the several Geneva Conventions extant
at the time and the Hague Conventions, which were related to military conduct towards prisoners
of war, and the laws and customs of war, but did not include any prohibitions on acts against
civilians.) Yet, these leaders were tried for crimes against humanity and genocide, acts which
were conducted against civilian persons, and arguably, not unlawful under Nazi domestic law at
the time, but arguably so inherently odious to humanity, civilization, the proper behavior of
nation-states, and the profession of arms, that the judges at Nuremberg upheld the charges on the
grounds that there were certain standards of conduct which were inherent to the human
condition, being immanent in Nature, and thus self-evident; and that their violation was always
unlawful, regardless of whether they were proscribed by treaty, or not.
Other examples of US enforcement of international law upon those who have not been bound by
treaty to follow it include:
 The post-World War II Tokyo Trials;

 The Subsequent Nuremberg Trials, conducted solely under US authority (e.g. the
Doctor's Trial)
 The International Criminal Tribunals for the former Yugoslavia and for Rwanda;
 The recent United Nations Security Council resolution referring the Darfur genocide to
the International Criminal Court for prosecution;
Due to these past actions that have recognized customary international law and peremptory
norms, under the doctrine of reciprocity, the United States has arguably recognized that there is a
customary international law and set of peremptory norms that exists outside of the domain of

62
treaties and the sphere of sovereign consent. Yet, like many nations that consider themselves to
be bound by customary law and peremptory norms clearly established by history, the United
States often takes issue with the length to which certain nations (often its European allies) and
international NGOs believe that customary law extends. For example, the U.S. does not believe
that customary law forbids the use of landmines (in minefields that are clearly marked and
mapped, as per relevant international agreements), cluster munitions, and incendiary devices,
while a good number of its allies do believe that, to a certain extent, the use of such munitions is
questionable under customary law.
Some in the U.S.[attribution needed] are of the opinion that other, non-allied nations and groups,
are using expansive interpretations of public international law to better position themselves in
potential future military conflicts against the U.S., a practice which they dub lawfare. For
example, the People's Republic of China has repeatedly advocated for a treaty to ban weapons in
outer space, while the U.S. has opposed such a treaty, as it wants to preserve its "freedom of
action in outer space".[citation needed] In January of 2007, the P.R.C. successfully tested an
anti-satellite space weapon (ASAT) against one of its own satellites. The U.S. and the U.S.S.R.
had previously tested ASAT weaponry in the 1980s, but then destroyed their ASAT weapons
after the disintegration of the U.S.S.R., and have not rebuilt them, or other space-based weapons.
To some in the US, this policy of advocating treaties to demilitarize space but developing space
weapons at the same time by the P.R.C. appears to be an aggressive legal attempt to prevent the
U.S. from developing capabilities to counter P.R.C. space weapons, as the U.S. is known to
abide by treaties to the letter, while the P.R.C. has been viewed as being unwilling to comply
with treaty obligations in the past.
Another example of alleged lawfare (which was allegedly successful) against the U.S. took place
during the Cold War. From the Second World War until 1969, the US had a biological weapons
research program, as did many other nations, including the USSR, although theirs was
completely secret; in any event, only the use of biological weapons (and not the possession of
biological weapons) was forbidden by treaty before 1972. The USSR publicly adopted a forceful
stand against biological warfare (while developing their own weapons in secret), repeatedly
denouncing the US bioweapons program in public as being inhumane, aggressive, destabilizing,
and against international law, which caused the program to be shut down by President Nixon in
1969, and its research destroyed. A treaty was proposed in 1972 to ban possession of biological
weapons, the Biological Weapons Convention; the US and the USSR both signed it. Immediately
following the entry into force of the Biological Weapons Convention, the USSR moved from
mere secret research and development of bioweapons to secret full-blown industrial-scale
production of biological weapons, including infectious weapons like smallpox, Ebola virus, and
other bioweapons through a state enterprise called Biopreparat. These weapons were mounted
onto ICBM missile warheads aimed at US cities, and were intended to be used if the Cold War
got hot. The USSR bioweapons scientists went so far as to genetically modify their germs so as
to be resistant to vaccines and treatments known to be used by the US. After Ken Alibek, the

63
head of Biopreparat, defected to the US in 1989, he revealed the existence of the Soviet
bioweapons program to the US government, including the real source of the Sverdlovsk anthrax
outbreak in the 1970s, and the existence of a secret Soviet bioweapons test site on an island in
the Aral Sea. The US demanded that this program be shut down, and the Soviet Union allegedly
did so (but some suspect that it was moved deeper underground). During the time the USSR was
producing bioweapons, in flagrant breach of the Biological Weapons Convention, the US strictly
observed the BWC to the letter, and, apparently has done so to this day (although questions have
arisen over US policy since the discovery of the USSR bioweapons program, as the US began
certain "biodefense" activities in response to that discovery, such as the development of
biological simulants and small quantities of bioweapons agents for purposes of testing US
biodefense sensors and suits, which are apparently lawful under the BWC). The effect of this
alleged USSR lawfare against the US was to leave the US defenseless against a USSR
bioweapons threat it believed did not exist.
Leading Cases
1. Foster & Elam v. Neilson (1989) 27 US 7 L. Ed. 415.
2. Sei Fujii v. California (1952 ) 38 Cal. 2d 718, 242.
3. Amerada Hess v. Argentine Republic 488 U.S. 428 109 S. Ct.
4. Respublica v. de Longchamps ( Court of Oyer and Terminer at Philadelphia 1784)
5. The Golder Case (European Court of Human Rights Series A, No. 18 of 1975.)

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CHAPTER 9
SUBJECTS OF INTERNATIONAL LAW
(A) Subjects of International Law

(B) State as Subject of International Law
1. Definition of State and Determination and conditions of Statehood
2. Parts of Stats Territories.
(C) Non state entities as subject of International Law: International Organisation, corporations
and individual
(D) Individual as Objects of International Law.
(E) Individual as Subjects of International Law
(A) SUBJECTS OF INTERNATIONAL LAW
Traditionally, international law is defined as a system of law composed solely of rules governing
the relations between states only. It is true that the primary concern of international law is with
the rights, duties and interests of states, but this does not mean that international law does not
concern itself with other entities or persons. Starks‘s definition of international law covers the
following three sets of rules:
(1) Rules regulating the relations amongst states;

(2) Rules regarding the structure and function of international institutions, and their
reactions with other international institutions, states or individuals; and
(3) Rules relating to individuals and non-state entities.
(B) STATE AS SUBJECT OF INTERNATIONAL LAW

Traditionally, states were the only or main subject of international law.
Determination and Conditions of Statehood
The nation-state is the fundamental entity of international law. States are not the only actors —
there are also people, corporations, international organizations, etc. — but states are the big ones.
A ―government‖ is not the same thing as a ―state.‖ A government is a separate entity from the
state. There are following four requirements to constitute a State:
1. Defined Territory, Over Which The Sovereign Exercises Control.
Not every single river, stream and rock need be defined. Border disputes are common.

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Emerging states — It is a common principle that emerging states inherit the territorial borders
they had before. Usually, the only other alternative is bloodshed.
The former Yugoslavia did have a border agreement at first — each entity would retain the
borders it had prior to independence. Had the nations of the world enforced that border
agreement, much of the bloodshed and atrocities would have been avoided.
Still, the ―all bets are off‖ approach seems to be the exception, rather than the rule, for emerging
states.
2. Definite Population of People.
Can be a few hundred only, but you do need some people.
3. under Control of Its Own Government.
If another state governs you, you‘re not a state yourself.
4. Capacity to Engage In International Dealings with Other States.
Peculiar Cases of Statehood
About the requirement of capacity to engage in international dealings can be gives up States.
Liechtenstein, for example, has given all foreign-affairs power to Switzerland, yet it is still a
state. There was a U.N. meeting to determine who was to pay for a certain project. The Swiss
ambassador ran over to the Liechtenstein and argued that the U.N. should pay for it, and then ran
back to the Switzerland to argue that the beneficiary nations should pay for it. You have to make
decisions on whether an entity is a state or not, if you are to know what to do in a situation.
The question of statehood arises particularly in the following situations:
 When there is a break-up of an existing state into a number of states.

 Secession or attempted secession by part of a territory of an existing state.
 Cases where foreign control is exerted over the affairs of a state, whether by treaty,
unilateral imposition of authority, or delegation of authority.
 Cases where states have merged or formed a union.
 Claims by constituent units of a union or federation to the attributes of statehood.
 Territorial or non-territorial communities which have a special international status by
virtue of treaty or customary law, and which claim statehood for certain purposes.
Rationale and Idea behind the State
State is a political organization of society, or the body politic, or, more narrowly, the institutions
of government. The state is a form of human association distinguished from other social groups
by its purpose, the establishment of order and security; its methods, the laws and their

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enforcement; its territory, the area of jurisdiction or geographic boundaries; and finally by its
sovereignty. The state consists, most broadly, of the agreement of the individuals on the means
whereby disputes are settled in the form of laws. In such countries as the United States,
Australia, Nigeria, Mexico, and Brazil, the term state (or a cognate) also refers to political units,
not sovereign themselves, but subject to the authority of the larger state, or federal union.
The history of the Western state begins in ancient Greece. Plato and Aristotle wrote of the polis,
or city-state, as an ideal form of association, in which the whole community's religious, cultural,
political, and economic needs could be satisfied. This city-state, characterized primarily by its
self-sufficiency, was seen by Aristotle as the means of developing morality in the human
character. The Greek idea corresponds more accurately to the modern concept of the nation—
i.e., a population of a fixed area that shares a common language, culture, and history—whereas
the Roman res publica, or commonwealth, is more similar to the modern concept of the state.
The res publica was a legal system whose jurisdiction extended to all Roman citizens, securing
their rights and determining their responsibilities. With the fragmentation of the Roman system,
the question of authority and the need for order and security led to a long period of struggle
between the warring feudal lords of Europe.
It was not until the 16th century that the modern concept of the state emerged, in the writings of
Niccolò Machiavelli (Italy) and Jean Bodin (France), as the centralizing force whereby stability
might be regained. In The Prince, Machiavelli gave prime importance to the durability of
government, sweeping aside all moral considerations and focusing instead on the strength—the
vitality, courage, and independence—of the ruler. For Bodin, his contemporary, power was not
sufficient in itself to create a sovereign; rule must comply with morality to be durable, and it
must have continuity—i.e., a means of establishing succession. Bodin's theory was the
forerunner of the 17th-century doctrine of the ―divine right of kings,‖ whereby monarchy became
the predominate form of government in Europe. It created a climate for the ideas of the 17th-
century reformers like John Locke in England and Jean-Jacques Rousseau in France, who began
to reexamine the origins and purposes of the state.
Rather than the right of a monarch to rule, Rousseau proposed that the state owed its authority to
the general will of the governed. For him, the nation itself is sovereign, and the law is none other
than the will of the people as a whole. Influenced by Plato, Rousseau recognized the state as the
environment for the moral development of humanity. Man, though corrupted by his civilization,
remained basically good and therefore capable of assuming the moral position of aiming at the
general welfare. Because the result of aiming at individual purposes is disagreement, a healthy
(noncorrupting) state can exist only when the common good is recognized as the goal.
Rousseau's ideas reflect an attitude far more positive in respect of human nature than either
Locke or Thomas Hobbes, his 16th-century English predecessor. The ―natural condition‖ of man,
said Hobbes, is self-seeking and competitive. Man subjects himself to the rule of the state as the

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only means of self-preservation whereby he can escape the brutish cycle of mutual destruction
that is otherwise the result of his contact with others.
For Locke, the human condition is not so gloomy, but the state again springs from the need for
protection—in this case, of inherent rights. Locke said that the state is the social contract by
which individuals agree not to infringe on each other's ―natural rights‖ to life, liberty, and
property, in exchange for which each man secures his own ―sphere of liberty.‖
The 19th-century German philosopher G.W.F. Hegel saw the sphere of liberty as the whole state,
with freedom not so much an individual's right, but rather, a result of human reason. Freedom
was not the capacity to do as one liked but was the alignment with a universal will toward well-
being. When men acted as moral agents, conflict ceased, and their aims coincided. Subordinating
himself to the state, the individual was able to realize a synthesis between the values of family
and the needs of economic life. To Hegel, the state was the culmination of moral action, where
freedom of choice had led to the unity of the rational will, and all parts of society were nourished
within the health of the whole. However, Hegel remained enchanted with the power of national
aspiration. He did not share the vision of Immanuel Kant, his predecessor, who proposed the
establishment of a league of nations to end conflict altogether and to establish a ―perpetual
peace.‖
For the English utilitarians of the 19th century, the state was an artificial means of producing a
unity of interest and a device for maintaining stability. This benign but mechanistic view
proposed by Jeremy Bentham and others set a precedent for the early communist thinkers like
Karl Marx for whom the state had become an ―apparatus of oppression‖ determined by a ruling
class whose object was always to maintain itself in economic supremacy. He and his
collaborator, Friedrich Engels, wrote in The Communist Manifesto that, in order to realize
complete freedom and contentment, the people must replace the government first by a
―dictatorship of the proletariat,‖ which would be followed by the ―withering away of the state,‖
and then by a classless society based not on the enforcement of laws but on the organization of
the means of production and the fair distribution of goods and property.
In the 20th century, concepts of state ranged from anarchism, in which the state was deemed
unnecessary and even harmful in that it operated by some form of coercion, to the welfare state,
in which the government was held to be responsible for the survival of its members, guaranteeing
subsistence to those lacking it.
In the wake of the destruction produced by the nationalistically inspired world wars, theories of
internationalism like those of Hans Kelsen and Oscar Ichazo appeared. Kelsen put forward the
idea of the state as simply a centralized legal order, no more sovereign than the individual, in that
it could not be defined only by its own existence and experience. It must be seen in the context of
its interaction with the rest of the world. Ichazo proposed a new kind of state in which the

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universal qualities of all individuals provided a basis for unification, with the whole society
functioning as a single organism.
Creation of states
The process of creating new states is a mixture of fact and law, involving the establishment of
particular factual conditions and compliance with relevant rules. The accepted criteria of
statehood were laid down in the Montevideo Convention (1933), which provided that a state
must possess a permanent population, a defined territory, a government, and the capacity to
conduct international relations.
The need for a permanent population and a defined territory is clear; though boundary disputes—
e.g., those concerning Albania after World War I and Israel in 1948—do not preclude statehood.
The international community (including the UN) has recognized some states while they were
embroiled in a civil war (e.g., the Congo in 1960 and Angola in 1975), thus eroding the
effective-government criterion. Croatia and Bosnia and Herzegovina were also recognized as
new states by much of the international community in 1992, though at the time neither was able
to exercise any effective control over significant parts of its territory. Although independence is
required, it need not be more than formal constitutional independence.
States may become extinct through merger (North and South Yemen in 1990), absorption (the
accession of the Länder [states] of the German Democratic Republic into the Federal Republic of
Germany in 1990), dissolution and reestablishment as new and separate states (the creation of
separate Czech and Slovak republics from Czechoslovakia in 1993), limited dismemberment
with a territorially smaller state continuing the identity of the larger state coupled with the
emergence of new states from part of the territory of the latter (the Soviet Union in 1991), or,
historically, annexation (Nazi Germany‘s Anschluss of Austria in 1938).
Recognition
Recognition is a process whereby certain facts are accepted and endowed with a certain legal
status, such as statehood, sovereignty over newly acquired territory, or the international effects of
the grant of nationality. The process of recognizing as a state a new entity that conforms with the
criteria of statehood is a political one, each country deciding for itself whether to extend such
acknowledgment. Normal sovereign and diplomatic immunities are generally extended only after
a state‘s executive authority has formally recognized another state (see diplomatic immunity).
International recognition is important evidence that the factual criteria of statehood actually have
been fulfilled. A large number of recognitions may buttress a claim to statehood even in
circumstances where the conditions for statehood have been fulfilled imperfectly (e.g., Bosnia
and Herzegovina in 1992). According to the ―declaratory‖ theory of recognition, which is
supported by international practice, the act of recognition signifies no more than the acceptance
of an already-existing factual situation—i.e., conformity with the criteria of statehood. The

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―constitutive‖ theory, in contrast, contends that the act of recognition itself actually creates the
state.
Before granting recognition, states may require the fulfillment of additional conditions. The
European Community (now embedded within the EU), for example, issued declarations in 1991
on the new states that were then forming in eastern Europe, the former Soviet Union, and
Yugoslavia that required, inter alia, respect for minority rights, the inviolability of frontiers, and
commitments to disarmament and nuclear nonproliferation. The timing of any recognition is
crucial—particularly when a new state has been formed partly from an existing one. Premature
recognition in a case of secession can amount to intervention in a state‘s internal affairs, a
violation of one of the fundamental principles of international law. Recognition of governments
is distinguished from the recognition of a state. The contemporary trend is in fact no longer to
recognize governments formally but to focus instead upon the continuation (or discontinuation)
of diplomatic relations. By this change, states seek to avoid the political difficulties involved in
deciding whether or not to ―recognize‖ new regimes taking power by non-constitutional means.
Although states are not obliged to recognize new claimants to statehood, circumstances
sometimes arise that make it a positive duty not to recognize a state. During the 1930s, U.S.
Secretary of State Henry Stimson propounded the doctrine of the non-recognition of situations
created as a result of aggression, an approach that has been reinforced since the end of World
War II. In the 1960s, the UN Security Council ―called upon‖ all states not to recognize the
Rhodesian white-minority regime‘s declaration of independence and imposed economic
sanctions. Similar international action was taken in the 1970s and ‘80s in response to South
Africa‘s creation of Bantustans, or homelands, which were territories that the white-minority
government designated as ―independent states‖ as part of its policy of apartheid. The Security
Council also pronounced the purported independence of Turkish-occupied northern Cyprus as
―legally invalid‖ (1983) and declared ―null and void‖ Iraq‘s annexation of Kuwait (1990). The
UN also has declared that Israel‘s purported annexation of the Golan Heights (conquered from
Syria in 1967) is invalid and has ruled similarly with regard to Israel‘s extension of its
jurisdiction to formerly Jordanian-controlled East Jerusalem.
(C) WHAT ARE THE RIGHTS & DUTIES OF THE STATE?

The Restatement (Third) § 206 states that the capacities, rights and duties of states include the
following:
1) Sovereignty over its own territory, and general authority over its nationals.
2) Status as a legal person, with the capacity to:
a. own, acquire, and transfer property;
b. make contracts and enter into international agreements;
c. become a member of international organizations; and
d. Pursue, and be subject to, legal remedies.

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3) The capacity to join with other states to make international law, as customary law or by
international agreement.
(D) NON-STATE ENTITIES AS SUBJECTS OF INTERNATIONAL LAW

(INDIVIDUAL, ORGANIZATIONS & CORPORATIONS)
Increasingly, individuals and non-state international organizations have also become subject to
international regulation. International law imposes upon the nations certain duties with respect to
individuals. It is a violation of international law to treat an alien in a manner which does not
satisfy the international standard of justice. However in the absence of a specific agreement an
individual cannot bring the compliant. Only the state of which he is a national can complain of
such a violation before an international tribunal. The state of nationality usually is not obligated
to exercise this right and can decide whether to enforce it.
International organizations play increasingly important role in the relationships between nations.
An international organization is one that created by international agreement or which has
membership consisting primary of nations. To vitalize the status of international organization of
which United States is a member and facilitate their activities Congress has enacted the
International Organization Immunities Act, which among other provisions defines the capacity of
such organizations. The United Nations, the most influential among international organizations,
was created on June 26, 1945. The declared purposes of United Nations are to maintain peace
and security, to develop friendly relations among nations, to achieve international cooperation in
solving international problems, and to be a center for harmonizing the actions of the nations and
attaining their common ends. The Charter of the United Nations has been adhered to by virtually
all states. Even the few remaining non-member states have acquiesced in the principles it
established. The International Court of Justice is established by the UN Charter as its principal
judicial organ.
Of late, the scope of international law has widened, whereby the range of subjects goes beyond
that of states, as is clear from the following:
TERRITORIES BUT NON – STATE ENTITIES
Territories which have not attained full status, like Colonies and protectorates, have been
regulated by several law-making conventions.
INTERNATIONAL INSTITUTIONS
In recent times, International law, lays down various rules containing constitutional provisions of
several international institutions like the United Nations, the ILO etc. There are several
Conventions which have created international offences and prescribed punishment for
individuals who commit those offences. The Geneva Conventions regarding the suppression of

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Counterfeiting Currency (1929) and the suppression of the International Drug Traffic (1936) are
instances. There are two kinds of International Institutions:
 Governmental (Public) International Organizations: These are established by states.
Given powers by states (specified in the organization‘s charter). Powers include much of
what states can do. For example, they may be able to enter into treaties with states.
 Non-governmental International Organizations: These are tolerated by states.
Multinational Companies. Not corporations that operate in several countries. (Those are
―transnational‖ corporations.) A truly ―multinational‖ company is owned by several
countries.
CORPORATIONS
How do you decide if a corporation is a national? Apply a different test than for people.
Barcelona Traction (Belgium v. Spain) (ICJ 1970) — Belgium wanted to exercise diplomatic
protection for the shareholders of Barcelona Traction. For that to happen, the company had to be
a national of Belgium. Absent nationality, the state couldn‘t intervene on behalf of the company.
The company was incorporated in Canada, but 88% of the shareholders were Belgians.
The shareholders clearly suffered harm when Spain deliberately sank the company. Still, a
corporation is clearly distinct from its shareholders. The wrong was only done to the
corporation. Unequivocally, a state is the sole judge of whether, when, to what extent, and for
how long it exercises diplomatic protection. Whether or not a company is a national depends on
municipal law. Otherwise, there would be tremendous legal difficulties. A shareholder is not
personally liable for the corporation. He isn‘t responsible for it. The loss of a shareholder‘s
investment therefore is not a legal wrong against the shareholder.
The test for nationality of a corporation is not a ―general connection‖ test. Nor is it a
―dominant/effective nationality‖ test. The test is wherever the corporation is registered.
Wherever its principal place of business is and of course, even if your company is registered in
the United States and its principal place of business is in the United States, there is no guarantee
that the State Department will argue on your behalf if you‘re being screwed by another country.
(Unless there‘s an international agreement to that effect in place already)
INSURGENTS
Insurgents, who are a group of individuals, and who do not constitute a state, are granted certain
rights in international law.
Thus, it is clear that the scope of international law to-day is no longer limited to the states, but
several non-state entities, including international institutions, have become the subjects of
international law. Very offer, individuals can be parties to disputes before international
Tribunals, and human rights and fundamental freedoms are increasingly recognized.

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(E) INDIVIDUALS AS SUBJECTS OF INTERNATIONAL LAW
INDIVIDUALS NOT SUBJECTS OF INTERNATIONAL LAW
This wide definition of international law (above) us bit accepted by some writers, who assert that
states are the only subjects with which international law is concerned. According to them, the
non-state entities or individuals do not come within the purview of international law. The center
of this controversy is the position of individuals in international law. Even in classical
international law, before the post-war development, slaves and pirates were always treated to be
within the purview of international law.
For example, as a result of treaties, slaves have had certain rights and protection given to them
by the society of states. Under customary international law also, individuals found some place.
Under the rules of Piracy Jure Pentium, individuals who committed piracy on the high seas were
treated as enemies of mankind, and were liable to be punished by any state which arrested them.
These are instances which show that the sole concern of international law is not with the state
only, but also with the individuals.
But the writers who take a narrow view of international law hold that the above-mentioned
instances do not prove that either the slaves have the rights or the pirates are under any liability.
But the states concerned have duties or rights as the case may be. Therefore, they hold that the
slaves or the pirates are not the subjects of international law but the objects of it. Further, they
hold that, in the last analysis, the protection to the slaves and the liability of the pirates are
enforced by virtue of the municipal law. Therefore, individuals should not consider being the
subjects of international law.
Further, it is also pointed out that no individual could be a party to a dispute before the
International Court of Justice. Even if there is a claim of an individual, such a claim can be
enforced only through the state. For these various reasons, it is argued that individuals cannot be
considered to be the subjects of international law.
INDIVIDUALS SUBJECTS OF INTERNATIONAL LAW
Amongst those who hold that individuals are the subjects of international law. Professor Kelsey
stands foremost. According to him, the states have no personality of their own. They are just
artificial persons created by fiction of law. Therefore, even when it is said that rules of
international law govern the conduct of states, the state being nothing but a collection of
individuals, the rules of international law given only the conduct of individuals.
Westlake reflects a similar opinion when he observes: ―The durries and rights of states are only
the duties and rights of persons who compose them.‖ According to this view, there is no real

73
distinction between state law and international law. Both systems bind individuals, though
international law binds the individuals immediately and through the fiction of the state. As an
answer to this, it is said that though theoretically and logically, Kelsey‘s views may be correct,
yet, practically, international lawyers and statement always work on the realistic basis that they
are concerned solely with the rights and duties of states.
Apart from the theoretical discussion, there are many instances where it can be shown that
international law is concerned with individuals. As mentioned above, the outstanding instance is
that of the slaves and pirates. The fact that the states are under a duty to protect the slaves, must
presuppose that the rights exist somewhere. Where do they exist, if not slaves? Who are slaves, if
not individuals? It is true that where protection is denied, the slaves have no international thrum
through which their right can be enforced. But that is more a question of procedural rules of
international law, than of substantive rules of international law.
The question is whether international law binds individuals is no longer of mere theoretical
significance? Nuremberg and Tokyo trials of the War criminals after Second World War prove
beyond doubt that individuals can be held responsible under international law. This view of the
Nuremberg and Tokyo International Tribunals has also been accepted by the International
Commission of the United Nations. The Commission, in its draft Code on Offences against the
Peace and Security of Mankind, did provide that persons could be guilty of crimes against the
peace and security of mankind.
There have been other instances also where international law has inflicted direct responsibility
on individuals. The Genocide Convention adopted by the United Nations‘ General Assembly in
December 1943, clearly provided that persons committing certain acts should be punished
―whether they are constitutionally responsible rulers, public officials, or private individuals‖.
The following are further instances where international law has conferred right on individuals:
(a) The Nuremberg judgment recognized that the victims of crimes against humanity committed
even by their Government are entitled to the protection of international criminal law.
(b) The Genocide Convention of 1948 attempts to protect the very right of human groups to exist
as groups.
(c) The preamble to the Charter of the United Nations stated the one of the important objects of
the Charter is to reaffirm faith in the fundamental human rights and in the dignity and worth
of the human person. The same object is repeated in Article 1, Para 3 which asserts that the
purpose of the organization is to attain ―respect for human rights and for fundamental
freedoms‖.
(d) In Europe, the movement for advancing human rights has gone even further. The European
Convention for the Protection European Commission of Human Rights, with administrative
power to investigate and report on violations of human rights. A European Court Human

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Rights has also been established in 1959. The Court has already enquired into a violation of
human rights lodged by an individual against his own Government. (Lawless v. The
Government of Ireland)
(e) International Minorities and Individuals treaties have created rights in favor of individuals
and have made it possible for individuals to approach international tribunals, as for instance.
Articles 297 and 304 of the Treaty of Versailles (1919)
(f) The Permanent Court of International Justice held, in Danzig Co.‘s case, that if a particular
treaty intended to cinder rights on individuals, this right should receive recognition at
international law. In this case, the dispute was between Poland and Dazing. There was an
agreement between these two states that Poland would respect certain conditions of
employment of Danzig Railway officials whom Poland had taken over. It was the contention
of Poland that the agreement being an international treaty, and not have been incorporated in
Polish Law, could not create any rights in favor of the Danzig Railway officials. At best, it
could only be an agreement which created rights and liabilities between Poland and Danzig.
The Court held that as the parties intended, by the agreement, to create rights enforceable by
private citizens, the private citizens could enforce the rights against the Polish Government.
Similarly, the argument that individuals cannot be parties to disputes before International
Tribunals and that they must always enforce their claims through the states only cannot be a
ground for holding that individuals are not subjects of international law. This disability, where it
exists, is a procedural rule. It does not refer to any substantive rule. Inability to approach a Court
is not always the test of the non-existence of the rights and duties. Even under municipal law, a
minor may not be able to approach the Court independently. In may be necessary that he must
approach a Court through a guardian, but that does not suggest that the minor is not a subject of
municipal law, or that he has no rights and duties in municipal law.
This rule that individuals cannot approach international Tribunals is also not without exceptions,
as for instance, the following cases:
(a) After the First World War, under the Treaty of Versailles, 1919, and the Polish German
Convention of 1922, individual claimants were allowed access to various mixed arbitral
Tribunals.
(b) Under the Treaty creating the European Coal and Steel Community, 1951,as also under the
Treaty establishing the European Economic Community (Common Market), 1957, and under
the Treaty establishing the European Atomic Energy European, 1957, individuals, private
enterprises and Corporate entities have been given certain rights of direct appeal to the Court
of Justice of the Communities against decisions of organs of the Communities.
(c) The United Nations‘ officials have also the right to take appropriate proceedings before the
United Nationals Administrative Tribunals, for alleged non-observance of their contracts of
employment or the terms of their appointment.

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(d) Therefore, it can safely be concluded that the modern tendency of international law is to
recognize increasingly, the rights and duties of the individuals.
(F) PROBLEMS OF INDIVIDUAL UNDER INTERNATIONAL LAW
NATIONALITY
What Is ―Nationality?
According to Starke, nationality is the status of membership of the collectivity of individuals
whose acts, decisions, and policy are vouchsafed through the legal concept of the state
representing those individuals. Nationality, as defined by Oppenheim, is the quality of the
individual of being a subject of a certain state, and therefore, its citizen. In is a continuing
relationship between the sovereign state and the citizen‖. The fundamental basis of a person‘s
nationality is his membership of an independent political community. This legal relationship
involves rights and corresponding duties upon both the citizen and the state.
Problems of Nationality
This absence of uniformity of the basis, on which nationality is determined by different states,
has resulted in complicated problems of double nationality, statelessness and disputed nationality
of married woman. Nationality, it should be noted, is different from race, domicile or citizenship
of the state or federation, or the right to diplomatic protection. Thus, a person may be a national
of one county, but may be domiciled in another country. Quite often, one might be considered to
be the national of a state, and yet denied the rights of citizenship. For example, according to the
law of the Nazi German Government, a distinction was made between a German subject and a
German citizen. German subjects, who were German nationals, were denied the right of
citizenship if they were not Aryans. Thus, the Jews were denied the rights of citizenship, though
they were German nationals. Further, it must also be noted that nationality is different from the
status of British subject under the British Nationality Act, 1948, and connected Commonwealth
legislations.
Determination of Nationality
The determination of nationality falls within the province of the municipal law of each state, and
it is not the concern of international law. Each state determines for itself, and according to its
own constitution and law, what classes of persons become its nationals. Therefore, naturally,
there are several variations in the rules of different states regarding determination of nationality.
But at the same time, some common principles can be culled out of the rules of different states
on this point. Generally, states determine nationality on the basis of the following principles:
(1) On the basis of the nationality of the parents at the time of the birth of the person (jus
sanguine);
(2) By the state of the territory of his birth (jus soil);
(3) By a combination of these principles.

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This absence of uniformity of the basis, on which nationality is determined by different states,
has resulted in complicated problems of double nationality, statelessness and disputed nationality
of married woman. Nationality, it should be noted, is different from race, domicile or citizenship
of the state or federation, or the right to diplomatic protection. Thus, a person may be a national
of one county, but may be domiciled in another country. Quite often, one might be considered to
be the national of a state, and yet denied the rights of citizenship. For example, according to the
law of the Nazi German Government, a distinction was made between a German subject and a
German citizen. German subjects, who were German nationals, were denied the right of
citizenship if they were not Aryans. Thus, the Jews were denied the rights of citizenship, though
they were German nationals. Further, it must also be noted that nationality is different from the
status of British subject under the British Nationality Act, 1948, and connected Commonwealth
legislations.
Acquisition of Nationality
Generally speaking, nationality may be acquired in the following three ways:
(1) By birth, according to jus soli, i.e., the territory of one‘s birth, or according to the nationality
of the parents at birth, or according to both.
(2) By Naturalization;
(a) By Marriage;
(b) By Legitimating;
(c) By official grant on application to the state authority.
(3) By conquest or cession, the inhabitants of these areas may acquire the nationality of the new
acquiring state.
Nationality and International Law

Nationality is the principal link between the individuals and the benefits of international law. The
function of nationality becomes apparent with regard to individuals abroad. According to starker,
the following are the important incidents of nationality in international law:
(1) The right to diplomatic protection abroad is an essential attribute of nationality.
(2) The responsibility of the state for its failure to prevent certain wrongful acts committed by its
national or to punish him after theses wrongful acts are committed in another state is another
incident of nationality.
(3) It is the duty of a state to receive back on its territory, its own nationals.
(4) The citizen of a state is under a duty to perform military service for the states to which he
owes allegiance.
(5) A state has a general right to refuse to extradite its own nationals to another state requesting
surrender.
(6) Very often, enemy status in times of war is determined by the nationality of the person
concerned.

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(7) States often exercise jurisdiction on the basis of nationality.
It may be noted that, in some cases, where the nationality of a particular individual is in doubt,
difficulties might arise. It appears that it is well-established rule that the question, as to what state
a person belongs, must be decided by the municipal law of the state to which he claims to belong
or to which it is alleged that he belongs. (Stock vs. Public Trustee)
Individuals and Nationality

The individual has always been a factor in international law, with piracy if for no other reason.
Individuals can be responsible to international law for their own actions as individuals, not solely
their actions as government agents. Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced. The official position of a defendant, whether as a
head of state, or as a responsible official in government, shall not be considered as freeing him
from responsibility, nor in mitigating punishment.
Diplomatic Protection
The state can takes up a citizen‘s claim on behalf of the individual.
Mavromattis Palestine Concessions (Greece vs. Great Britain) (PCIJ 1924)

A Greek citizen said he had been treated unfairly by Great Britain in violation of international
law, and he asked Greece to take up his case before an international tribunal. Great Britain said
an individual has no right to have a state take up his claim on the individual‘s behalf. The PCIJ
held that, by taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a state is in reality asserting its own rights — its
right to ensure respect for the rules of international law. It just happens to be asserting that right
through one of its subjects.
The decision to provide ―diplomatic protection‖ is left up to the state. It is not the individual‘s
decision to make. Only the state of which the individual is a national has the right to provide
diplomatic protection. Determining the nationality of the individual is therefore CRITICAL in a
situation like this.
Tinoco Claims Arbitration case

In this case again Great Britain took up the corporation‘s claim on its behalf against Costa Rica.
Corporations have nationality, as do ships & planes. [Aside: Honduras, Panama, and Liberia
have competed to have the lowest safety standards and taxes, and most permissive liabilities law,
for ships and planes. This makes things even worse if you have a problem on such a ship/plane.]
Decisions about nationality are important. The doctrine of diplomatic protection is alive and
well, and is in constant use.

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Important of Nationality
A state has prescriptive jurisdiction over nationals overseas. A state can give diplomatic
protection to a national. Extradition treaties may provide that a state need not extradite its own
nationals. Stateless people are at the mercy of a cruel world, it‘s good to have backup. Whatever
your citizenship, the laws of your country can follow you wherever you go, if your country so
desires. You need to know the nationality of people in a given situation, to know if there are any
applicable treaties. If you are stateless, you‘re screwed. No state can intervene on your behalf,
you have no protection. You‘re an alien everywhere.
There is no international law obligation to let aliens into your territory. But once admitted, there
are obligations on how you treat them. Many refugees are stateless. Sure, they‘re residents of
some state or other, but they aren‘t nationals. Thus, they are not entitled to the same rights as
nationals. States can‘t arbitrarily strip you of nationality. It is okay for espionage or treason, but
not for little crap. There is no right of asylum, no matter what awful thing is happening to you.
Many states are signing agreements envisioning asylum, but it isn‘t customary international law
yet. Many states also say you can‘t be repatriated once you‘re in their territory, but they aren‘t
required to say that under international law.
All citizens are nationals, but not all nationals are citizens.
Citizenship is decided under municipal law, and doesn‘t affect how someone is treated under
international law. In some countries, only a tiny portion of the population are citizens (with
rights like owning property, etc.), although most of the population may be nationals.
Nottebohm Case (Liechtenstein v. Guatemala) (ICJ 1955)

This is an important case on this issue under which it has been established that when states must
accept you as a national of X country. When must a state recognize your passport? (Nationals
have a right to a passport, but whether it is honored or not is different.) Mr. Nottebohm was born
and reared in Germany. At the age of 24, he went to Guatemala, and lived & worked there for a
long time. He never became a Guatemalan national, however, because that way he could avoid
taxes. (Countries have since gotten tired of this loophole, but that‘s the way things worked then.)
After 34 years (it was now 1939), it was suddenly not a good time to be a German national. So
he went to Liechtenstein. There they had some minimal procedures for naturalization, and he
went through them to become a national. He took an oath of allegiance and paid back taxes.
Well, he didn‘t really pay the taxes; he just left a security deposit. He paid his fees, they waived
the residence requirement, and he was a Liechtenstein citizen.
Then he went back to Guatemala. WWII began. In wartime, enemy aliens are frequently
rounded up and put into internment camps where they are held to be traded for your own
nationals abroad. (Internment camps based merely on race, where your own citizens are put, are
bad.) Mr. N. was picked up by the Guatemalans and sent to the USA for interment. He said he

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wasn‘t a German, he was a Liechtensteiner. Had his passport and everything? Guatemala didn‘t
honor it. Liechtenstein was outraged that its passport was being treated like toilet paper, and sued
Guatemala in the ICJ. The case never got to the legal issue of extradition, because first they had
to decide whether Liechtenstein was allowed to assert diplomatic protection and assert the rights
of this individual. They could only do that if he really was a Liechtenstein national.
Note, this wasn‘t a formal extradition; they were just deporting an alien. Extradition is when you
send someone to another country to stand trial for a crime.
Critical point — international law leaves it up to each state to make the rules for naturalization.
Whatever the state says are the requirements that are the requirements to be a national. Whether
other states must recognize that nationality? This is up to international law.
Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of
existence, interests and sentiments, together with the existence of reciprocal rights and duties.
Merely being a resident isn‘t enough for this ―genuine connection.‖ Thus the requirements is at
the time of naturalization, did the individual appear to have been more closely attached by his
tradition, his establishment, his interests, his activities, his family ties, his intentions for the near
future, to this state than to any other state? Here, the ICJ said no. So Guatemala didn‘t have to
honor his Liechtenstein nationality.
Involuntary Nationality
Some countries embrace you as a national whether you want them to or not. You walk through
the airport; they say ―Welcome back, citizen,‖ and the next thing you know you‘ve been sent into
the army for your required service, at the age of 54. This may violate international law.
You might be able to say there isn‘t a genuine connection. A state is not required to recognize a
nationality imposed by another state on an individual against his will on the basis such as
marriage to a national, a specified period of residence, acquisition of real property in the state‘s
territory, bearing a child there, or having a particular ethnic or national origin. Nor is a state
required to recognize a nationality that the individual has renounced.
Double Nationality
As already pointed out, the laws of different states regarding nationality are not uniform.
Consequently, it is possible that certain individuals possess double nationality. For example,
when a woman belonging to one state, marries a man belonging to another state, this problem of
double nationality might arise. The state to which, she beings before marriage may not recognize
the change of nationality by marriage, while the law of the state to which the husband belongs
may recognize that she has acquired the nationality of her husband. In such cases, she retains
both the nationalities. United States ex rel. Mergé v. Italian Republic (1955).Mrs. Mergé was

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born in the United States, and was an American citizen. She married an Italian, thereby
becoming an Italian citizen under Italian municipal law. (Not only had she married an Italian
national, she married a diplomat under Mussolini.) They were assigned to live in Imperial Japan.
She tried to maintain her United States citizenship. Under United States law, she possibly could
have maintained it.
At the end of WWII, her US citizenship became very valuable. When wars are over, United
States citizens who owned property in other countries, and foreigners who had property in the
United States, bring claims in front of commissions where nationality is important. She‘d had a
grand piano in Italy, which was destroyed during the war. The US brought a claim on her behalf
for the value of the piano. Italy refused, claiming that she was an Italian citizen, so the US
couldn‘t represent her. The Commission had to decide whose national she was.
 First, looked at the peace treaty. That was no help.

 Second, looked at the Hague Convention of 1930, which says you cannot ask state 1 to
intervene against state 2 when you are a national of state 2.
 States cannot assert diplomatic protection against another state when the individual is a
dual citizen of both.
BUT, if you are before a third party, such as an international tribunal, there is a different test —
what is your DOMINANT nationality? What is the country to which you have the most
connections, your principle or habitual residence, economic bonds, social/family bonds, etc.
Applying these factors, the Commission decided that she was principally an Italian citizen. The
United States therefore couldn‘t make a claim on her behalf for the loss of the grand piano.
Alexander Tellech Claim (United States vs. Austria & Hungary) (1928)
This is a sad case. Commission held that a 5-year-old accompanying his parents to Austria was
voluntarily incurring the risk incident to residing in Austria, and voluntarily subjugated himself
to the duties and obligations of an Austrian citizen. The claimant was born in the United States of
Austrian parents in 1895, thereby acquiring both US and Austrian nationality. He lived in the
US until he was five years old, when he accompanied his parents to Austria.
In 1914, at the age of 19, he was interred ―as an agitator engaged in propaganda in favor of
Russia.‖ After 16 months in an internment camp, he was impressed into military service. The
Commission rejected a United States claim on his behalf; on the ground that Tellech was a
citizen of both countries and that he had voluntarily taken ―the risk incident to residing in
Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen
arising under the municipal laws of Austria.‖
The Hague Convention of 1930 on the conflict of Nationality Laws, attempted to minimize the
difficulties arising out of double nationality. Article 5 of the Convention provides that in a third

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state, a person of more than one nationality is to be treated as if he had one nationality. The basis
for treating him as having one nationality may be any one of the following:
1. The nationality of the country in which he is habitually resident; or

2. The nationality of the country with which he appears to be most closely connected.
The same Convention tried to minimize the difficulties arising out of the double nationality of
married women, by providing that they could retain their nationality before their marriage under
some circumstances. The United Nations is making a move for the adoption of a convention on
the nationality of married women, so that the difficulties arising out of the double nationality of
the married women may be further minimized.
Loss of Nationality
Nationality may be lost in the following ways:
(1) By release. – Some state grant their citizen the right to ask to be released from nationality; or,
such release may be granted by virtue of declaring that one has acquired a foreign nationality.
(2) By deprivation. – For example, according to the municipal law of some states, the fact that a
citizen enters into foreign civil or military services without permission of his sovereign,
deprives him of his nationality. The legislations of many states recognize numerous grounds
of deprivation of nationality.
(3) By expiration. – Some states have provided by legislation that citizenship expires in case of
those citizens who have left the country and stayed abroad for a certain length of time.
(4) By renunciation. – In the case of double nationality of children, the municipal laws of certain
states give them a right, on coming of age, to declare whether they wish to cease to be a
citizen of a state. In such circumstances, they cease to be citizens of the state other than that
of their choice.
STATELESSNESS
Statelessness is the opposite of double nationality. It may so happen that either by
denationalization or on account of lack of uniformity of nationality laws, a person may find
himself without nationality. This condition of statelessness exposes an individual to great
hardship and lack of security. Realizing this, the Universal Declaration of Human Rights, this
was adopted by the United Nations in 1948, provided that ―everyone has a right to nationality‖
and that ―no one shall be arbitrarily deprived of his nationality‖.
This condition of statelessness can be remedied in the following ways:

(a) By imposing duties upon states to regard a certain nationality as acquired;
(b) By imposing a duty on states to refrain from unjust denationalization measures;
(c) By liberal-minded states conferring their nationality upon stateless persons;
(d) By removing restrictions on travelling and admission of stateless persons.

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ALIENS: RIGHTS AND DUTIES OF STATES WITH REGARD TO ALIENS
Admission of Aliens
Juristic opinion on this question is not uniform. At the one end, there is the extreme view that a
state is under a duty to admit all aliens. At the other end, there is other view that a state is fully
entitled to exclude all aliens at will. In between, some hold the view that a state is under duty to
admit all aliens subject to some conditions and qualifications.
Most of the states theoretically claim the right to exclude all aliens at will, on the ground that
such a right is an essential attribute of sovereign Government. Similar has been the view of the
Courts of Great Britain and the United states. State migration laws of many countries show that
there is no duty at international law to admit aliens. Though this is the theoretical position, in
practice, states do freely admit aliens, subject to certain conditions. Sometimes, the total
prohibition of the citizens of one particular state may be considered as an unfriendly act towards
that state.
Legal Position of Aliens When Admitted

With his entrance into the territories of a state, an alien falls, at once, under the territorial
supremacy of that state, unless he belongs to a privileged class like that of the diplomatic agents,
which enjoys immunity of so-called exterritorialy. But at the same time, an alien admitted into a
state continues to be under the personal supremacy of his own state. In the state he is admitted,
he is generally in the same position before law as the subject of the state. But some states subject
aliens to some kind of discriminations or restrictions. These discriminations or restrictions,
generally, are on voting rights and the practice of certain professions. The Economic Committee
of the League of Nations has classified the treatment of aliens abroad under the following heads:
(1) Fiscal treatment. – Every resident alien, unless he enjoys diplomatic immunity, is under an
obligation to pay the ordinary civil taxes or customs dues.
(2) Rights as to the exercise of professions, industries, or occupations. – As already pointed out,
aliens can be admitted subject on practicing certain profession.
(3) Treatment in such matters as residence, the holding of property and civil privileges and
immunities – Regarding the right of an admitting state to confiscate or nationalize the
property of an alien, a detailed discussion is give in the Chapter on state Responsibility, and
the position at international law may be summed up as follows:
(a) Discriminatory confiscations and expropriations are opposed to principles of
international law.
(b) Arbitrary confiscation or expropriation without confiscation, the opposed to
international law.
(c) In case of such discriminatory or arbitrary confiscation, the home state of the alien
can intervene.

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(d) But, nationalization consistent with the general policy of the state is not opposed to
international law and gives no ground for intervention by the home state.
(e) Aliens, though they owe temporary allegiance or obedience to the state of residence,
are yet exempt from any compulsory obligation to serve in the armed forces of the
country in which they reside, unless the state to which they belong consents to waive
the exemption. But this does not exempt such aliens from compulsory service in a
local police force.
(4) Conditions of admission and emigration. – As already pointed out, admission of aliens is at
the discretion of the admitting state, and such a state might impose several conditions regarding
both admission and immigration.
Expulsion of Aliens
A state is competent to expel aliens while they are on a temporary visit or even when they are
there to establish a business and are running a profession after they have acquired domicile. The
power of the state is analogous to the power of the state to refuse admission t aliens. Though this
power to expel is inherent, yet the manner in which they are to be expelled is regulated by
international law. The expulsion must be affected in reasonable manner and without any injury to
the alien. Arresting the alien prior to expulsion should be avoided, unless such alien refuses to
leave the state or is likely to evade the authorities. Such an alien should not be exposed to
unnecessary indignities; nor should he be deported to such a country where his personal freedom
would be threatened.
Extradition and Asylum

The questions of extradition and asylum are inter-connected. Extradition means the surrender by
one state to another state at its request, a person accused or convicted of certain kinds of criminal
offences. Asylum means receiving an alien and giving him shelter and protection, and therefore,
refusing to extradite. As Starke observes, asylum stops, as it were, where extradition begins.
EXTRADITION
The following considerations lie behind the law and practice as to extradition:
(1) The general desire of all states is to ensure that serious crimes do not go unpunished. If the
state in which a fugitive is present cannot prosecute or punish him on some technical rule,
he must be surrendered to the state which can, and will, punish him.
(2) The best state that is able to try the offender is the state on the territory of which the crime
has been committed, because that state has the greatest interest in the punishment of the
offender and has the greatest facilities for collecting the evidence.
The Nature of the Obligation to Extradite

Customary international law is silent on the question. The practice of extradition is
comparatively recent and has developed with modern transport and commerce. It is mostly the

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outcome of bilateral treaties and statutes. In the absence of these, there is no obligation either to
extradite or not to extradite. Therefore, the obligation to extradite is considered to be an
imperfect obligation. Nevertheless, certain broad principles regarding the conditions necessary
for extradition can be laid down.
Conditions Necessary for Extradition

Starke broadly classifies the conditions necessary for extradition into two: (1) There must be an
extraditable person (object of extradition), and (2) There must be an extraditable crime.
(a) Extraditable Person (Object Of Extradition)

Since extradition is the delivery of an accused or convicted individual to the state on the territory
of which he is alleged to have committed a crime, or to have been convicted of a crime, the
object of extradition can be any individual, whether he is a national of the prosecuting state or
the national of a third state or that of the extraditing state. However, many states, such as France
and Germany, have adopted the principle of never extraditing their nationals to a foreign state.
States like Great Britain do not make this distinction between their nationals and others.
(b) Extradition Crime

The crime for which extradition is requested must be a serious crime. Some countries prescribe
that there can be extradition only for certain offences, the punishment for which is a certain
minimum. Certain countries enumerate extraditable crimes. As a rule, extradition is not granted
when the person is accused of: (a) Political crimes, (b) Military offences, or (3) Religious
offences.
Political Crimes
The term ‗political crime‘ was unknown in both the theory and practices of international law
before the French Revolution. It was after the French Revolution that this term had become
current. Article 120 of the French Constitution, framed after the French Revolution in 1793,
granted asylum to a foreigner exiled from this home country ―for the cause of liberty‖. Naturally,
during the Nineteenth century, a period of political revolt against despotism and absolutism,
public opinion developed against extradition of political offenders. The liberal states like Great
Britain, Switzerland, and Holland refused to extradite political offenders.
Concept of Political Crime

Serious difficulties exist concerning the definition of a political crime. Some writers consider a
crime to be political if committed from a political motive. Others call political any crime
committed for a political purpose. Some writers confine the term to certain offences against the
state only. In Re Castioni (1890) the test of a political crime was discussed by the English Court.
The facts of the case are the following: Cationic was a Swiss national. There was intense
political discontentment in a particular canton of Switzerland, as the demand of the people for a

85
popular vote on the question of revision of the Constitution was not accepted by the Government.
There was an armed attack against the Arsenal. Cationic was a member of the armed mob. He
fired a shot which killed the Municipal Commissioner. After the incident, Cationic ran away to
England. The Swiss Government demanded extradition of Castioni. Castioni was arrested. Then
he applied for a writ of Habeas Corpus. The Queen‘s Bench Division held that Castioni‘s crime
was a political crime, and therefore, he could not be extradited. The Court observed that ―To
exclude extradition for such an act as murder, which is one of the extradition offences, it must at
least be shown that the act is done in furtherance of , done with the intention of assistance, as a
sort of overt act in the course of acting in political matter, a political rising, or a dispute between
two parties in the state as to which is to have the Government in its hand, before it is brought
within the meaning of the word used in the Act‖.
In another case, In Re Meunier (1894), the test of a political crime was further clarified. The facts
of the case are the following: Meaner was an anarchist, and he was responsible for explosions in
a Paris café and a French barrack. After the explosions, he ran away to England. The French
Government requested the British Government to extradite Meaner. When extradition
proceeding were started, Meaner took up the plea that his extradition could not take place as he
was guilty of a political offence. His plea was rejected on the ground that he was an anarchist,
and he did not believe in any form of Government. He was an enemy of all Governments. His
activities were directed against the general body of citizens. It was pointed out by the court that
―in order to constitute an offence of a political character, there must be two or more parties in the
state, each seeking to impose the government of its own choice on the other, and that if the
offence is committed by one side on the other in pursuance of that object, it is a political offence,
otherwise not‖. As it was held that Meaner was not guilty of any political offence, he was handed
over to the French Government by the British Government.
The test laid down in Re Meunier and Re Castioni has been further extended in R. V. Governor
Of Brixton Prison, Exparte Rolizynski (1963) 1 (QB55), where the Court held in effect that
offences committed with a political object or with a view to avoiding political persecution or
prosecution for political default, are ―political crimes‖, even though any intention to overthrow
an established Government may be absent. Thus, this decision extends the meaning of political
crimes.
In another case, in Re Government of India and Mubarak Ali Ahmed (1952), the question of
political implications of a crime happened to be discussed. The facts of the case are the
following: One Mubarak Ail Ahmed, who claimed to be a native of Pakistan, was arrested in the
Republic of India and charged with forgery and fraud. He was committed for trial. He jumped
bail and ran away to Pakistan. Later, when he came to England, a demand for his extradition was
made by the Government of India. He was arrested under the Fugitive Offenders Act, 1881. The
prisoner applied for a wait of Habeas Corpus. He argued inter alia

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(a) That there was no substance in the charges made;

(b) That the proceedings were based on political considerations only; and
(c) That having been treated as a spy for Pakistan, he would not be given a fair trial in Bombay,
where he was due to come up for trial. It was held that the case was not of a political nature.
It concerned a man who was charged with forgery. Even if the case had some political
implications, there was no reason to suppose that he would not receive a fair trial.
Most of the states lay down another test of an extradition crime. This test is known as the test of
double criminality, i.e., the crime which is alleged to have been committed by the person whose
extradition is demanded, must be a crime, both according to the law of the state of asylum and of
the requesting state. The facts of the case are the following: One Jacob Factor, who was alleged
to have received money which he knew to have been fraudulently obtained, left England and was
residing in the state of Illinois. The extradition crime was not an offence in Illinois, though
according to criminal law, in general, of the United States, the offence was punishable. The
Supreme Court held that as it was punishable according to the criminal law in general of U.S.A.,
the rule of double criminality was satisfied.
The third principle is known as the principle of specialty, i.e., a state asking a person to be
extradited on the ground that he has committed a particular crime can try him only for that crime
and for no other.
ASYLUM
As already it has been pointed out, asylum is connected with extradition. Asylum stops where
extradition begins. Asylum is the right of every state to refuse to extradite in certain
circumstances. It also involves the elements of shelter and active protection on the part of the
authorities in control of the territory of asylum.
Kinds of Asylum: It is of two kinds: Territorial, and (ii) Extra-territorial
Territorial Asylum
Territorial asylum is the one granted by a state in its territory. The power to grant a territorial
asylum is an incidence of territorial sovereignty. This power of a state is of ancient origin.
It should, however, be noted that the power to grant territorial asylum is the right of the state
granting it. It is sometimes said that the person seeking asylum has a right of asylum has a right
of asylum. This is not correct. Though some Constitutions and the Universal Declaration of
Human Rights of 1948 mention the right of asylum, there is no such right recognized by
international law. The power of a state to grant asylum may be restricted by the treaties it has
entered into with other states, as for example, extradition treaties.

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Extra – Territorial Asylum

Extra-territorial asylum is one granted for, and in respect of legations, consuls premises,
international headquarters, warships and merchant vessels to refugees from the authorities of the
territorial state. The granting of extra-territorial asylum, being in the nature of derogation from
the sovereignty of the territorial state, is given under some exceptional circumstances. The
following are the kinds of extra-territorial asylum:
(a) Asylum in Legations: There is no general right to grant asylum in the premises of the
legation. The International Court of Justice in the Asylum Case (1950) reaffirmed that there
is no general right of diplomatic asylum. But in certain exceptional cases, such diplomatic
asylum may be granted, as for instance, the following:
(i) When there is a mob is order or mob rule, and when the life of an individual is in
extreme danger, asylum in allegation maybe granted as a temporary measure
(ii) When there is a local binding custom authorizing such asylum it may be granted
(b) Asylum in Consulates: The law in this case is the same as that in the case of legations
(c) Asylum in the premises of International Institutions: There is no general right to grant
asylum in the premises of International Institutions.
(d) Asylum in Warship: Asylum may be granted in a warship on the ground of humanity in
case of extreme danger to the individual seeking it.
(e) Asylum in Merchant Vessels: There is no right to grant asylum in merchant vessels.

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CHAPTER 10
STATE TERRITORY AND TERRITORIAL SOVEREIGNTY
(A) Concept of State Territory and Sovereignty

(B) Mode of Acquisition and Transfer of State Territory,
(C) Parts of Territory and Delimitation of Territorial Sovereignty,
(D) State territorial jurisdiction over Land
(E) State territorial jurisdiction over water: Rivers, The Territorial Sea, The Continuous
zone, The High Sea, Continental shelf, Straits. Canals, Island and land-locked States,
Bays and Gulf
(F) State territorial jurisdiction over air space and outer space: The legal regime of the
air, Air Navigation, Outer Space, Telecommunications
(A) CONCEPT OF STATE TERRITORIAL SOVEREIGNTY
What is State territory?

One of the attributes of statehood is that a State should have a territory. In other word there
cannot be a State without a territory. It implies that each State is established within a definite
area of the globe delimited formally by agreed boundaries. International Law gives recognition
to the territorial sovereignty exercised by the State in question within that area. The territory over
which a State has an exclusive control and jurisdiction is referred to State territory.
Oppenheim defines State territory as that defined portion of the globe which is subjected to the
sovereignty of a State. Thus, territory of a State is the property of that State. It can exercise
supreme authority over the State territory. However, territorial sovereignty of a State must not be
exercised in a manner detrimental to other States but in good faith, in compliance with
international obligations and with International Law in general. It was stated by the International
Court of Justice in the Corfu Channel case that it is 'every State's obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other States.
Definition territorial Sovereignty

State territory is that definite portion of the surface of the globe which is subject to the
sovereignty of a State. Territory is one of the essential elements of a State. The concept of
territorial sovereignty signifies the fact that, within a particular territory, jurisdiction is exercised
by the State over persons and property, to the exclusion of other States. Max Huber described
territorial sovereignty in the Island of Palmas Arbitration Case, in the following terms:
―Sovereignty, in the relation between States, signifies independence. Independence, in reference

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to a portion of the globe, is the right to exercise therein, to the exclusion of any other State, the
function of a State.‖
The concept of exercise of ―The functions of a State‖ has been further elaborated by the
International Court of Justice in its Advisory Opinion in the Western Sahara, ICJ Reports (1975)
12. The Court was of the opinion that legal ties of territorial sovereignty over people of land
must be distinguished from ties of allegiance, in the case of persons, and mere customary rights,
in relation to land. State activity on a sufficient scale indicating conclusively the exercise of
authority, is one mark of the existence of territorial sovereignty.
It is said that territorial sovereignty is indivisible. However, this statement must be accepted
subject to certain modifications. As already pointed out, it is possible that two or more powers
may exercise sovereignty over the same territory, absinthe case of a condominium. Again, a
lease of territories is not unknown to international law. In such cases, the Lessee State exercises
temporary sovereignty, while the Lessor State possesses sovereignty in reversion.
State boundaries
State territory consists of land within its boundaries. A boundary is therefore a line on the surface
of the earth which separates the territory of one State from that of another, or from un-
appropriated territory, or from the open ea.' International boundaries are also sometimes referred
to frontiers. Boundaries may be of two kinds.
 Firstly, natural boundaries, such as rivers, a range of rocks or mountains, deserts or
forests, and
 Secondly, the artificial boundaries which are constructed for the purpose of dividing
territories. They may consist of walls, pillars, poles and trenches etc. Since boundaries
are a fertile source of dispute amongst the States.
For instance, India and China are involved in the boundary dispute since a long time. While in
the western sector, no definite boundary line exists at all in the eastern sector, McMahon Line,
the boundary settled in the Simla Convention in October 1913, is not acceptable to China.
Further, India and Pakistan are engaged in a conflict since 1983 over the Siachen glacier as no
boundary line exists in this area. In 1949, Karachi agreement was concluded between the two
States where a cease-fire line (later it was began to be called Line of Control) was set with the
assistance of the U.N. Observers. That was regarded as a boundary between the two States.
However, the line was set only up to a point designated as N. J. 9842. The glaciated area of it
was not demarcated. The result was that a dispute over the area arose between the two States.
They should be well defined. Once they are settled either by treaties or by awards of tribunals
they are generally not disturbed in view of the fact that boundary treaties create right in rem.
Boundaries may be demarcated either by the States concerned themselves or by the 'international
agencies. Demarcation of boundary in 1993 between Iraq and Kuwait by Iraq-Kuwait Boundary

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Demarcation Commission, set-up by the Security Council of the Unites Nations is an example of
the demarcation of the boundary by international agency.
Spheres of Influence and Spheres of Interest

States have often claimed rights less than territorial sovereignty over certain territories. Such
rights are described by diplomats as spheres of influence or spheres of interest. Hall defines a
sphere of influence in the following way: ―…..an understanding which enables a state to reserve
to itself a right of excluding other European powers from territories that are of importance to it
politically as affording means of future expansion to its existing dominions or protectorates, or
strategically as preventing civilized neighbors from occupying a dominant military position‖.
A sphere of interest is that sphere in which a state asserts or claims to possess exclusive
economic or financial concession exclusive rights of exploitation. To claim a particular territory,
either as a sphere of influence or as a sphere of interest, is not consistent with the obligations of
the states under the United Nations Charter, to respect the territorial integrity of other countries.
The state have territorial jurisdiction in air, water and over land.
Territorial Sovereignty subject to International Law

The sovereignty of a state is confined to a defined piece of territory, which is subject to the
exclusive jurisdiction of the state and is protected by international law from violation by other
states. Although frontier disputes do not detract from the sovereignty or independence of a
particular state, it is inherent in statehood that there should be a core territory that is subject to
the effective control of the authorities of the state. Additional territory may be acquired by states
through cession from other states (the Island of Palmas case in 1928); by the occupation of
territory that is terra nullius (Latin: ―the land of no one‖)—i.e., land not under the sovereignty or
control of any other state or socially or politically organized grouping; or by prescription, where
a state acquires territory through a continued period of uncontested sovereignty.
Under the UN Charter, sovereign title to territory cannot be acquired purely and simply by the
use of force. Express or implied consent is required under international law for recognition of
territory acquired by force, whether or not the use of force was legal. When states are created
from the dissolution or dismemberment of existing countries, it is presumed that the frontiers of
the new states will conform to the boundaries of prior internal administrative divisions. This
doctrine, known as uti possidetis (Latin: ―as you possess‖), was established to ensure the stability
of newly independent states whose colonial boundaries were often drawn arbitrarily.
(B) MODE OF ACQUISITION OF TERRITORIAL SOVEREIGNTY

International law generally recognizes five modes of acquiring territorial sovereignty by a State.
They are: (i) Occupation, (ii) Annexation, (iii) Accretion, (iv) Cession, (v) Prescription. These
different modes of acquiring sovereignty by a State are discussed below. In this connection, it

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may be noted that the topic of Acquisition of Territorial Sovereignty is developed in international
law on a very close analogy to the concept of ownership under private law.
1) OCCUPATION
When a particular territory is not under the authority of any other State, a State can establish its
sovereignty over such territory by occupation. Traditionally, the subject-matter of occupation is
terra nullius (territory not subject to the authority of any other State); but, territory inhabited by
tribes or peoples having a social and political organization cannot be terra nullius (Western
Sahara case, cited above). Where land is inhabited by organize tribes or peoples, territorial
sovereignty can only be acquired by local agreements with the rulers or representatives of the
tribes and peoples.
To determine whether a State has occupied a particular territory or not, the principle of
effectiveness is applied. The Permanent Court of International Justice explained the elements of
effective occupation in the Eastern Greenland Case (1933). This case arose on account of the
disputes between Norway and Denmark over the title to Eastern Greenland. In this case, the
Permanent Court of International Justice held that the occupation, to be effective, must consist of
following two elements:
(a) An intention on the part of the occupying State to act as sovereign: The intention either
be formally expressed, or it may be inferred from the surrounding facts. The intention must be a
permanent intention to assume control. Therefore, mere discovery, unless accompanied by some
concrete display of permanent intention to occupy, will not constitute occupation.
(b) Adequate exercise or display of sovereignty by such State: So far as this element of
occupation is concerned, it should be: (a) Peaceful; (b) Actual or genuine; (c) Such as to confer a
valid title; and (d) Continuous. The principle that mere act of discovery by one State is not
enough to confer a title by occupation is well-established by the award of Max Huber in the
Islands of Palmas Arbitration (1928).
The facts of the case are the following: Spain had originally discovered the Islands of Palmas.
United States of America claimed a title to these Islands as a successor to Spain. Netherlands, on
the other hand, claimed that, for a very long period, it had acted as sovereign over the Islands.
The Arbitrator, being convinced by the evidence adduced by Netherlands, held that the long
continuous exercise of effective authority by Netherlands, conferred on it the title to the Islands,
and the mere act of discovery by Spain gave it no title.
Extent of territory covered by occupation

There have been two theories regarding the extent of territory that is covered by an act of
occupation.

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i. The theory of continuity: According to this theory, the sovereignty of an occupying State
extends to such area as is necessary for the security or natural development of the area of
occupation
ii. The theory of contiguity: According to this theory, the sovereignty of the occupying state
extends to those neighboring territories which are geographically pertinent to the are of
occupation. But theory of contiguity was rejected by Max Huber in the Island of palmas
case, on the ground ―that it was only lacking in precision‖.
Of late, a third principle, known as the sector principle, is advocated. According to this principle,
the states with territory bordering on the polar region have claimed a sovereign title to land or
frozen sea within a sector bound by definite meridian of longitude intersecting the pole.
However, the validity of this claim is not generally accepted. The widely held view is that the
polar areas should be subject to an international regime.
The treaty on Antarctica

This treaty was signed at Washington, on December 1, 1959, by the seven Antarctic States and
Belgium, Japan, South Africa, the Soviet Union. This Treaty provides, among other things, the
following:
1) Antarctica should be used for peaceful purposes only.
2) There should be freedom of scientific investigation there, and the parties should exchange
information regarding Antarctic Scientific programmes.
3) The nuclear explosions and the deposition of radioactive wastes in Antarctica should be
prohibited.
4) All area in Antarctica should be freely available for inspection by observers of the
contracting states.
5) However, it is expressly provided in Art. IV of the Treaty that nothing in the Treaty is to
be interpreted as renunciation of claims or of any basis of claims in Antarctica. The
Treaty, while in force, would support all the existing territorial rights, but no new claim
or enlargement of an existing claim is to be asserted.
(2) ANNEXATION
A State might acquire territorial sovereignty over a territory by annexation in the following
circumstances:
(a) Where a territory annexed has been conquered or subjugated by the annexing state (as was
sought to be done by Iraq, a few years ago.)
(b) Where the territory annexed is in a position of virtual subordination to the annexing state,
even before the intention to annex is declared. In this case, there must be a formal declaration of
the intention to annex. If a territory is conquered during the course of war, the possession of the
power is only de facto and provisional. It becomes de jure only when there is a formal
declaration of annexation to all other interested powers.

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(3) ACCRETION
Where a new territory is added mainly through natural causes to territory already under the
sovereignty of a state, this is called acquisition by accretion. In such circumstances, no formal
assertion of title is necessary.
(4) CESSION
Cession is when a state transfers its territory to another state. In cession of territory, cession takes
place in favor of such latter state. The cession of territory may be voluntary or may be under
compulsion as a result of war. The act of cession may be even in the nature of a gift, sale,
exchange or lease. To constitute a valid cession in international law, any act which indicates an
intention to transfer sovereignty is sufficient. A cession once made is irrevocable and a state
cannot derogate from its grant.
(5) PRESCRIPTION
When a state is, in exercise of continued sovereignty in a peaceable manner, for a long period,
over the territory of another state, then the former state acquires title by prescription. According
to D. H. Johnson, the following conditions must be fulfilled for a state acquires territory by
prescription:
(a) The possession of such territory must be under a claim of sovereign title.
(b) Such possession must be peaceful and uninterrupted.
(c) It must be public.
(d) It must be for a considerable length of time. What is considerable length of time is a question
which can be decided by an International Tribunal. However, it must be noted that there is no
decision of any International Tribunal which conclusively supports the doctrine of
prescription in international law and which definitely prescribes a particular length of time
for which the de facto sovereignty must be exercised by the acquiring state.
OTHER METHODS
Though some writers include adjudication or award by a conference of states and lease as other
methods of acquiring sovereignty over a territory. However, these methods are not materially
different from cession.
LOSS OF TERRITORIAL SOVEREIGNTY

Sovereignty over a territory may be lost by methods which correspond exactly to the methods of
acquiring sovereignty. These methods are by dereliction (i.e., by abandonment), by conquest of
other states, loss of territory by operation of nature and by prescription. Oppenheim adds that
―There is a sixth mode of losing territory, namely, revolt‖. Revolt followed by cession is a mode
of losing territory, for which there is no corresponding mode of acquisition.

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(C) JURISDICTION OF THE STATE
Basis of Jurisdiction of State

Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its
territory. It may be exercised through legislative, executive, or judicial actions.
 Territorial principle
International law particularly addresses questions of criminal law and essentially leaves civil
jurisdiction to national control. According to the territorial principle, states have exclusive
authority to deal with criminal issues arising within their territories; this principle has been
modified to permit officials from one state to act within another state in certain circumstances
(e.g., the Channel Tunnel arrangements between the United Kingdom and France and the 1994
peace treaty between Israel and Jordan).
 Nationality principle
The nationality principle permits a country to exercise criminal jurisdiction over any of its
nationals accused of criminal offenses in another state. Historically, this principle has been
associated more closely with civil-law systems than with common-law ones, though its use in
common-law systems increased in the late 20th century (e.g., the adoption in Britain of the War
Crimes Act in 1991 and the Sex Offenders Act in 1997). Ships and aircraft have the nationality
of the state whose flag they fly or in which they are registered and are subject to its jurisdiction.
 Passive personality principle
The passive personality principle allows states, in limited cases, to claim jurisdiction to try a
foreign national for offenses committed abroad that affect its own citizens. This principle has
been used by the United States to prosecute terrorists and even to arrest (in 1989–90) the de facto
leader of Panama, Manuel Noriega, who was subsequently convicted by an American court of
cocaine trafficking, racketeering, and money laundering. The principle appears in a number of
conventions, including the International Convention against the Taking of Hostages (1979), the
Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons (1973), and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984).
 Protective principle
The protective principle, which is included in the hostages and aircraft-hijacking conventions
and the Convention on the Safety of United Nations and Associated Personnel (1994), can be
invoked by a state in cases where an alien has committed an act abroad deemed prejudicial to
that state's interests, as distinct from harming the interests of nationals (the passive personality
principle).
 Universality principle
Finally, the universality principle allows for the assertion of jurisdiction in cases where the
alleged crime may be prosecuted by all states (e.g., war crimes, crimes against the peace, crimes
against humanity, slavery, and piracy).

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BASIS OF JURISDICTION IS SUBJECT TO INTERNATIONAL LAW

All state do not exercise jurisdiction on the basis of the same principle. The American group of
states exercise jurisdiction mainly on the territorial principle. On the other hand, several
European states, on account of their peculiar geographic problem, exercise jurisdiction on a
much wider basis than that of the territorial principle. The general principle of international law
regarding state jurisdiction is that, unless prohibited by international law, a state can exercise
jurisdiction without any limitation. The Permanent Court of International Justice held, in the
Lotus Case (1927), that there is no restriction on the exercise of jurisdiction by any state,- unless
that restriction can be shown, by the most conclusive evidence, to exist as a principle of
international law.
EXCEPTION TO JURISDICTION: IMMUNITY TO FOREIGN DIPLOMATS

Jurisdictional immunity exists in certain contexts. Diplomatic personnel, for example, have
immunity from prosecution in the state in which they operate. In the 1960s, however, the Vienna
Convention on Diplomatic Relations and the Vienna Convention on Consular Relations
stipulated that the level of immunity varies according to the official's rank. Immunity is generally
more extensive in criminal than in civil matters. A country's diplomatic mission and archives
also are protected. International organizations possess immunity from local jurisdiction in
accordance with international conventions (e.g., the General Convention on the Privileges and
Immunities of the United Nations of 1946) and agreements signed with the state in which they
are based. Certain immunities also extend to the judges of international courts and to visiting
armed forces.
(D) EXTENSION OF TERRITORIAL SOVEREIGNTY OF THE STATE OVER LAND
TERRITORIAL BOUNDARIES
As all persons and things within the territory of a state fall under its territorial sovereignty, each
state has jurisdiction over them. This principle is supported by an observation of Lord Macmillan
in Compania Naviera Vascongado Vs. Cristina S.S. (1938). According to him, ―it is an essential
attribute of the sovereignty of this realm, as of all sovereign independent states, that it should
possess jurisdiction over all persons and things within its territorial limits and in all causes, civil
and criminal arising within these limits‖. This observation affirms the British practice that mere
physical presence of any person or thing is enough for a state to exercise jurisdiction, irrespective
of the domicile or the residence of the person. It appears that such legislation is presumed to be
applicable to property and events in the territory of a state, unless a contrary intention appears
from the construction of the statute. The practice of the United States is also the same.
According to Starke, a boundary is often defined as the imaginary line on the surface of earth,
separating the territory of one state from that of another. But, a boundary may not mean always a
line in the borderland. It may mean different things to a surveyor, to a strategist and to an

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administrator. Boundaries are either recognised expressly by treaty or acknowledged without

express declaration.
In the case concerning the Temple of Preah Vihear (Merits) Cambodia-(Thailand) I.C.J. Reports
(1962) 6, the disputed area was the region of a certain Temple sanctuary (Preah Vihear), and
there was a conflict between the frontier according to a Treaty of 1904, whereby it was to follow
a watershed line, and the frontier according to boundary maps completed in 1907, and
communicated in 1908 to the Siamese (New Thai) Government. As the Siamese Government,
and later the Thai line, and had not shown that any special importance was attached to the
watershed line, the Court held that the map line should be preferred, and that the Temple area
was under the sovereignty of Cambodia.
Boundaries may be classified either as natural boundaries or artificial boundaries. Natural

boundaries consist of mountains, rivers, sea-shore, forests, etc., where these divide the territory
of two or more states. Artificial boundaries consist either of signs erected for the purpose of
parallel of longitude or latitude. When a river constitutes the boundary of two states, it will be
difficult to draw the boundary line. In the case of a non-navigable river, the boundary line
generally runs down the middle of the river. This line is known as the ―median line‖. In the case
of navigable rivers, the boundary line generally runs through the middle line of the deepest
navigable channel, otherwise known as-the Thalweg. The Peace Treaties if 1919-20 accepted the
above principles in the case of rivers which constitute the boundary of two states.
If the boundary is constituted by lakes or land-locked seas, the boundary line depends on the
nature of the lake or the sea concerned. The territory of a state consists in the first place of the
land within its boundaries, and if the state is one with a sea-coast, certain waters which are
within or adjacent to its land boundaries.
TERRITORIAL JURISDICTION OVER CRIMINALS

Some states like Great Britain and the United states generally adopt territorial theory of criminal
jurisdiction unless it is modified by International Conventions. Several other states do not adhere
to the exclusive territorial theory of jurisdiction.
Justification of the Territorial Criminal Jurisdiction

Territorial criminal jurisdiction is justified on the ground that it is convenient that a crime should
be dealt with by the state whose order is most closely affected, and generally the state on whose
territory the crimes are committed will be such states. It is the state, on whose territory the crime
is committed, that has the greatest facility and the strongest interest for repressing crimes.

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Exception to the Territorial Principle

Though the territorial principle is generally accepted, yet the principle does not justify a state
prosecuting a foreigner temporarily within its territory for an alleged offence against its laws
committed abroad on a prior occasion. In Curring’s Case (1887), the Mexican Government
arrested in Mexico an American citizen, cutting, for having published in the territories of the
U.S.A. on a prior occasion, an article alleged to constitute a libel on a Mexican citizen. The
United States of America objected to the application of the territorial principle to such a case.
This objection seems to be consistent with the principle of international law.
Technical Extension of the Territorial Jurisdiction

Crimes may not necessarily be confined in all their aspects to the territories of a particular state.
A crime may be engineered or prepared in one state and committed in another state. In such
circumstances, the question of jurisdiction raises certain problems. It is also possible that the
state in which the preliminary or the initial part of the crime was committed may refuse to
prosecute and punish the offender. For instance, where the principal offence committed in state
A is engineered (i.e. state B) may decline to exercise territorial jurisdiction and prosecute or
punish the offenders on that ground that, as the acts were accessory to a principal offence
committed elsewhere, the territorial jurisdiction is inapplicable. Thus, in A – G’s Reference No. 1
of 1982 (1983), it was held that a conspiracy to defraud, to be carried out abroad, is not
indictable in England, even if its performance would damage the property interests of a company
within English jurisdiction, and even if its performance would injure a person resident in, or
company located in England, by causing that person or company damage or loss abroad. To meet
these difficulties, the territorial jurisdiction of a state is extended. This extension of the territorial
jurisdiction is called ‗technical extension‘ by Starke. The extension of the territorial jurisdiction
under the circumstances mentioned above may be either on (1) the subjective territorial principle
or (2) the objective territorial principle.
The Subjective Territorial Principle

Some states claim to exercise jurisdiction over crimes commenced within their territory but
completed in the territory of another state. Though this principle is not generally adopted by all
states, yet this principle has been adopted in the following two International Conventions:
 The Geneva Convention for the Suppression of Counterfeiting Currency (1929).
 The Geneva Contention for the Suppression of licit Drug Traffic (1935).
Under these Conventions, the states which are parties to the Conventions are under an obligation
to punish the offenders if either the preparation or conspiracy to participate in the commission of
the offences mentioned in the Conventions takes place in their territories,- even though the
ultimate offences are not completed in their territory.

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The Objective Territorial Principle

Professor Hyde defines the Objective Territorial Theory thus: ―The setting in motion outside of a
state of a force which produces, as a direct consequence, an injurious effect therein justifies the
territorial sovereign in prosecuting the actor when he enters its domain‖. For example, when a
man fires a gun across a frontier and kills another man in a neighboring state, the state where the
final act of the crime was committed has jurisdiction according to the objective territorial
principle. The states which apply this principle claim jurisdiction over offences, commenced in
another state provided: Such offence is completed within their territory. Or such offence
produces harmful consequences to the social order inside their territory.
The principle is recognized both by the English and American Courts. The Permanent Court of
International Justice also applied this principle in its decision in the Lotus Case (1927). The facts
of the case were: A French Steamship,‖ The Lotus‘, proceeding to Constantinople, collided with
a Turkish collier, Bozo-Kurt, on the open sea. The Bozo-Kurt sunk in consequence, and eight
Turkish nationals on board lost their lives. It was alleged that the collision was due to the gross
negligence of an Officer on board the French vessel, the Lotus. The Lotus arrived at
Constantinople, and the Officer of the French ship was placed under arrest without prior notice to
the French Consul-General. Prosecution proceedings were started against the officer by the
Turkish authorities. It was contended on behalf of the accused that the Turkish Criminal Court
had no jurisdiction over him.
The plea was over-ruled and the officer was convicted and sentenced. The French Government
made diplomatic representations and demanded the release of the French officer or the transfer of
the case to the French Court. The Turkish Government agreed to refer the case to the Permanent
Court of International Justice at Hague. In pursuance of an agreement drawn up at Geneva, the
matter was referred to the Court at Hague. Two questions were to be determined in this case:
Whether Turkey acted contrary to the principles of the international law by instituting criminal
proceedings against the French officer; and if the reply was in the affirmative, what pecuniary
reparation was due to the French officer?
By the casting vote of the President of the Court, the first question was answered in the negative.
It was held that the action of the Turkish authority was not inconsistent with international law. It
was observed during the course of the judgment that, ―The territoriality of the criminal law is not
an absolute principle of the international law and by no means coincides with the territorial
sovereignty‖. This judgment of the Permanent Court of International Justice met with wide-
spread criticism, as one of its possible effects was to subject seamen to foreign criminal law of
which they might have no knowledge. In the special Convention of 1952 relating to ―Penal
Jurisdiction in matters of Collision, etc.‖ a contrary rule was adopted. However, it has to be
noted that the principle lay down in the Lotus Case has not been approved by the International
Law Commission.

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Territorial Jurisdiction over Foreigners

A foreigner is not presumed to be immune from the territorial jurisdiction of state in which he
finds himself. The general presumption is that he is as much subject to the territorial jurisdiction
of the local state as its citizens are, unless – He is not subject to the operation of the local law, by
reason of some special immunity; or the local law is not in conformity with international law.
Jurisdiction According To the Universal Principle (Piracy)

Wherever an offence is contrary to the interests of the international community as a whole, it is
treated as offence against all states, and any state is entitled to exercise jurisdiction over such act
according to the Universal Principle of Jurisdiction. There are two such offences recognized by
international law. They are:
 Piracy Jure Gonium, and
 War Crimes.
 Piracy Jure Genitum
According to Prof Starke, ―In its jurisdictional aspects, the offence of Piracy Jure Gonium is
quite unique‖. On the ground that a pirate is an enemy of mankind, all states have the right to
capture, try, and punish a pirate. According to the International Law Commission, piracy consists
of an illegal act of violence, detention, or any act of depredation, committed for private ends, by
those aboard a private ship or private aircraft, and directed, either on the high seas against a ship
or persons or property thereon or in territory or waters of the nature of terra nullius against a ship
or person or property thereon. According to this definition, it may be noted that the offence of
piracy has the following ingredients:
 It us as illegal act of violence, detention, or any act of depredation.
 It is committed for private ends.
 It is committed by those aboard a private ship or private aircraft.
 It is committed either on the high seas or in territory or waters which are not under the
jurisdiction of any state (Terra nullius).
 It is directed against a ship or persons or property on such waters or the high seas.
The Privy Council has held in the case of Piracy Jure Gentium (1934) that actual robbery is not
an essential element of the crime of piracy, and an unsuccessful attempt to commit a robbery on
the high seas can also be considered to be piracy.
Piracy at International Law and Piracy under Municipal Law

The definition of the crime of piracy given above is the definition of the crime according to
international law. But two or more states may, by treaty, agree to add other acts to the category
of violence at sea, and may agree that they may exercise exceptional jurisdiction over such acts.
For example, two countries may agree that slave trading be also considered as an act of piracy. In
such circumstances, the parties to the treaty alone have jurisdiction over nationals of the parties
to the treaty.

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Piracy and Insurgents

Piracy can be committed only by a private ship. Warships and other public ships sailing under
the order of recognized Governments, or recognized belligerent powers cannot be held guilty of
piracy, because in such circumstances, the Government authorizing the sailing can be held
responsible for the acts of the public ships. When insurgents carry on acts of hostility at sea, it
presents a problem. Should such insurgents, if not recognised, be treated as pirates by other
states? The British practice has been not to treat these unrecognized insurgents as pirates, unless
acts of violence are committed by them against the lives and property of British subjects.
However, in the case of The Ambrose Light (1885), an American Federal Court held that an
armed vessel, commissioned by Columbian insurgents, was properly sized as a pirate, because
the insurgents were not recognized as belligerents. In this case, the test laid down was that an
insurgent vessel will not be considered as a private one, provided it is acting under the orders of
responsible Government. The underlying principle of the test is as follows: If the insurgents are
acting under the orders of such Government, the affected state might seek redress against it
according to the principles of international law. In the absence of such a responsible
Government, the insurgents must be treated as pirates and subjected to jurisdiction under the
universal principle.
War Crimes: Universal Jurisdiction

In addition to the principles of piracy jure gentium, there is another principle which extends the
doctrine of universal jurisdiction that would be in the case of war crimes. The principle of
universality of punishment or war crimes was accepted by the Geneva Convention of 1949.
Eichmann Case (1962) : In this case, the facts were as follows: Adolf Eichmann was a Germen
officer during the Nazi regime in Germany. He was responsible for the indiscriminate massacre
of the Jews in Germany. After the Second World War, he ran away from Germany and started
living in Argentine. He was forcibly brought from Argentine to Israel and put up for trial in
Israel under the Nazi Collaborators (Punishment) Law, enacted in Israel after the state of Israel
came into existence. He was charged for the wholesale massacre of the Jews in Germany.
Various objections were raised on behalf of Eichmann against his trial before a Court in Israel. It
was pointed out that the Israel Law, by inflicting punishment for acts done outside the
boundaries of the state and before its establishment, against persons who were not Israeli
citizens, and by a person who acted in the course of duty on behalf of a foreign country,
conflicted with International Law, and exceeded the powers of the Israeli Legislature. It was also
contended that the prosecution of the accused in Israel upon his abduction from a foreign
country conflicted with International Law and exceeded the jurisdiction of the court. It was also
contended that there must be a connection between the state and the person who committed the
crime, and in the absence of an acknowledged linking point, it was ultra-virus on the part of the
state to inflict punishment for foreign offences.

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The Supreme Court of Israel, sitting as a Court of Appeal, Relied in part upon the principle of
universal jurisdiction in upholding the conviction by a court in Israel of Eichmann, a war
criminal, for war crimes and crimes against humanity, thereby overruling objections that
Eichmann‘s actions occurred in Europe during the Second World War before the state of Israel
was actually founded and that his offences were committed against people who were not citizens
of that state.
Jurisdiction over Waters

Waters which constitute the territory of a state may be either national waters or territorial waters.
(1) National Waters
National waters consist of the waters in its lakes, in its canals, in its rivers together with mouths,
in the ports, and harbors and in some of its gulfs and bays.
(2) Territorial Waters

Territorial waters consist of the waters contained in a certain zone or belt called the maritime
belt, which surrounds a state and thus includes part of the water in some of its bays, gulfs, and
straits.
From the point of view of international law, the distinction between national and territorial
waters is important. National waters and territorial waters differ in three important ways:
(1) In territorial waters, foreign states can claim for their ships a certain Right of passage,
whereas in national waters, no such right exists.
(2) In matters if jurisdiction, the municipal laws of certain states draw a distinction between the
two.
(3) The measurement of territorial waters will be from a base line where waters of the gulf or
bay cease to be national.
Jurisdiction over Rivers

Oppenheim classifies rivers into the following categories: (a) National rivers; (b) Boundary
Rivers; (c) Non-national rivers; and (d) International rivers.
(a) National Rivers

A river which lies wholly within the boundaries of one and the same state is known as a national
river. There is no rule of international law which grants a foreign state the right of admission for
their public or private vessels to navigation on national on national rivers. In the absence of a
treaty, every state can exclude foreign vessels from its national rivers, or admit them
conditionally.

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(b) Boundary Rivers

Rivers which separate two different states from each other are known as Boundary Rivers. In the
case of Boundary Rivers, the riparian states can regulate navigation on such part of these rivers
as they own. They can exclude vessels of non-riparian states, unless there is a special treaty to
the contrary.
(c) Non-National Rivers

Rivers which run through several States are described as non-national rivers. Such rivers are
owned by more than one state. Each state owns that part of the river which runs through its
territory. The right of the riparian states to exclude vessels of the non-riparian states in the case
of the non-national rivers is similar to their rights in the case of Boundary Rivers.
(d) International Rivers

International rivers are those rivers which are navigable from the open sea, and at the same time
either separate, or pass through several states between their sources and their mouths. Though
these rivers belong to the territories of the different states concerned, yet they are named
International Rivers.
Freedom of Navigation of International Rivers

Several writers on international law, commencing with Grotius, have been of the opinion that
there is a general Right of passage for all states along with international rivers. Oppenheim
observes,‖…..freedom of navigation in times of peace on all such rivers in Europe and on many
of them outside Europe for merchant men of all Nations is recognised by conventional
international law‖. But Starke thinks that this view has never been generally accepted in practice,
and is certainly not recognised as a customary principle of international law. Regarding the
freedom of navigation in international rivers, there are three views:
(1) Some writers are of the opinion that such freedom of navigation is confined to times of
peace only.
(2) The second view (which finds the support of Starke) is that only countries through which an
international river passes have such freedom.
(3) According to the third school, the freedom of navigation in international rivers is neither
restricted to times of peace nor to the riparian state, but is exists in favor of all, subject only
to the right of each state to make necessary regulations in respect of the use of the river
within its boundaries.
Freedom of navigation on international waterways is now determined by special treaties. The

process of regulating freedom of navigation on most of the great river systems of Europe began
with the Treaty of Paris in 1814, and finally resulted in acceptance of the Barcelona Convention
in 1921 under the auspices of the League of Nations.

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Barcelona Convention on Regime of Navigable Waterways of International Concern

This Convention, which has received the requisite number of ratifications and is now in force,
laid down the following rules:
(a) Each state which is a party to the Convention accords free exercise of navigation of the
vessels flying the flag of any of the other contracting states, on those parts of navigable
rivers which may be situated under its sovereignty or authority.
(b) The riparian states can have the right to sabotage (i.e., internal traffic), and can exclude the
warships of other countries from the international river.
(c) In exercise of navigation, the nationals, property, and flags of all contracting states are to be
treated on a footing of perfect equality.
(d) Each riparian state is bound to refrain from measures likely to reduce the facilities for
navigation.
For purposes of jurisdiction, the territory of a state is not only its landmass, but it also includes
the: (1) Maritime Belt (Territorial Sea); (2) A ship bearing its national flag; and (3) Ports.
(E) EXTENSION OF TERRITORIAL JURISDICTION OVER SEA WATER
The sovereign territory of a state extends to its recognized land boundaries and to the border of
airspace and outer space above them. A state that has a coastal boundary also possesses certain
areas of the sea. Sovereignty over bodies of water is regulated by four separate 1958
conventions40 and UN Law of the Sea Treaty 1982, which entered into force in 1994. The
territory of states includes
 Internal waters
The internal water lies in harbors, lakes, and rivers that are on the landward side of the baselines
from which the territorial sea and other maritime zones are measured, over which the state has
full and complete sovereignty and exclusive jurisdiction. Through the Law of the Sea treaty and
now under customary international law, a state may claim a territorial sea of up to 12 nautical
miles from the baselines (essentially the low-water mark around the coasts of the state
concerned), though, in cases where a coast is heavily indented, a series of straight baselines from
projecting points may be drawn. A state has sovereignty over its territorial seas, but they are
subject to the right of innocent passage—i.e., the right of all shipping to pass through the
territorial waters of states, provided that the passage is not prejudicial. Examples of prejudicial
conduct include the threat or use of force, spying, willful and serious pollution, breaches of
customs, sanitary, fiscal, and immigration regulations, and fishing. Coastal states may exercise a
limited degree of criminal jurisdiction with regard to foreign ships that are engaged in innocent
passage through their territorial seas (e.g., in cases where the consequences of the crime alleged
40
Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf, the Convention
on the High Seas, and the Geneva Convention on Fishing and Conservation of the Living Resources of the High
Seas

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extend to the coastal state or where such measures are necessary for the suppression of the traffic
of illicit drugs).
 Straits
The 1958 Convention on the Territorial Sea and Contiguous Zone provided that states cannot
suspend the innocent passage of foreign ships through straits that are used for international
navigation between one part of the high seas and another part of the high seas or the territorial
sea of a foreign state. The 1982 treaty established a new right of transit passage for the purpose
of continuous and expeditious transit in straits used for international navigation between one part
of the high seas or exclusive economic zone and another. Some international straits are subject to
special regimes. The controversial Straits Question, for example, concerned restrictions in the
19th and 20th centuries that limited naval access to the Bosporus and Dardanelles—which
connect the Black Sea with the Sea of Marmara and the Mediterranean Sea—to countries
bordering the Black Sea.
 Contiguous zone
A series of other maritime zones extend beyond territorial seas. A contiguous zone—which must
be claimed and, unlike territorial seas, does not exist automatically—allows coastal states to
exercise the control necessary to prevent and punish infringements of customs, sanitary, fiscal,
and immigration regulations within and beyond its territory or territorial sea. The zone originally
extended 12 nautical miles from the baselines but was doubled by the 1982 treaty.
 Exclusive economic zone

The exclusive economic zone developed out of claims to fishing zones. The 1982 treaty allowed
states to claim such a zone, extending 200 nautical miles from the baselines, in which they would
possess sovereign rights to explore, exploit, conserve, and manage the natural resources of the
seas and seabed; to exercise jurisdiction over artificial installations and scientific research; and to
protect and preserve the marine environment. The zone was accepted as part of customary
international law in the ICJ's 1985 decision in the dispute between Libya and Malta, which
concerned the delimitation of the continental shelf between them.
 Continental shelf
A state is automatically entitled to exercise sovereign rights to explore and exploit the natural
resources in an adjacent continental shelf (i.e., the ledges projecting from the land into and under
the sea). The shelf may extend either to the outer edge of the continental margin or to 200 miles
from the baselines where the outer edge of the continental margin does not reach that distance.
Thus, the continental shelf as a concept in international law becomes a legal fiction where the
shelf does not in fact extend as far as 200 miles.
Problems have arisen over the delimitation of the various maritime zones between adjacent and
opposing states. International law generally requires equitable resolutions of maritime territorial
disputes. Although the definition of equity is unclear, relevant factors include the impact of

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natural prolongation of the land territory (i.e., the basic principle that the continental shelf is a
continuation of the land territory into the sea), proportionality between the length of a disputing
party's coastline and the extent of continental shelf it controls, the principle of equidistance (i.e.,
a line of equal distance from the two shores in question), and the existence (if any) of islands
between the coastlines.
 Jurisdiction on Government Vessels: Civil Process
The coastal state is not to stop or divert a foreign merchant ship passing through the territorial
sea for the purposes of exercising its civil jurisdiction in relation to a person on board the ship.
Further, the coastal state cannot levy exaction against or arrest such a vessel for the purpose of
any civil proceedings, except in case of obligations or liabilities incurred by the ship itself in the
course of its voyage through the coastal water. But, this does not prevent the coastal state from
levying execution against or arresting a foreign merchant ship lying in the territorial sea afar
leaving its internal waters for the purpose of any civil proceedings in avoidance with its laws.
This is also applicable to Government vessels operated for commercial purposes, but not to
Government vessels operated for non-commercial purposes.
 Ship Bearing National Flag of a State – The floating Island Theory

There is a theory known as ― The floating island Theory‖, according to which a ship bearing the
national flag of the state is treated as if it were the territory of the state for purposes of
jurisdiction. This theory is applicable whether the ship is on the high seas or in the territorial
waters. But of late, this theory has attracted much criticism, both by judicial decisions and
eminent writers on international law like Hall.
 Ports
The port is very much different from the maritime belt as it is a part of inland waters. Yet, ships
of other states can enter into the ports of the coastal state under special arrangements. The
jurisdiction over such foreign ship is not exercised on the basis of any uniform rule of
international low. It varies from state to state, and also it varies according to the nature of the
ship. Different principles will be applied depending on whether the vessel is a merchant vessel or
a public vessel.
 Merchant Vessels
The merchant vessels, as a rule, are subject to the jurisdiction of the state whose port they enter.
The restrictions on such jurisdiction would depend on the practice of the state in question. But
under which the international law, there is one exceptional circumstance under which the state of
the port may not exercise jurisdiction over a foreign vessel entering its ports. When the foreign
vessel, being in distress, enters a foreign port to seek shelter, it is immune from the local
jurisdiction of the coastal state, provided such vessel does not commit any deliberate breach of
the municipal law of the state of the port. The practice of different states is not uniform so far as
the exercise of jurisdiction over the merchant vessels is conceded.

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British Practice
Merchant vessels belonging to a foreign country, when in British ports, are subject to complete
jurisdiction and police regulation of the British authorities. But in criminal matters, the British
authorities do not generally intervene and enforce their jurisdiction, unless the peace or good
order of the port is likely to be affected, or either those in control of the ship or some
representative of the state, the flag of which the ship carries, invoke their assistance.
Practice of the United States

Under the American practice, a distinction is drawn between matters affecting the peace or good
order of the port and matters of internal discipline of the ship. When the peace and good order of
the port are affected, the authorities of the U.S.A. exercise jurisdiction. In Wilderhu’s Case, the
Supreme Court of the U.S.A. held that when one Belgian seaman killed and stabbed another
Belgian in a Belgian ship in an American port, the peace and good order of the port was affected,
and therefore, it was proper for the American authorities to exercise jurisdiction and the Belgian
Consul was excluded from exercising jurisdiction. On any matters affecting internal discipline of
the ship, the authorities of the Flag State have primary jurisdiction.
(F) TERRITORIAL JURISDICTION ON CANALS

Canals may be either inland waterways or inter-oceanic canals. In the former case, the canals are
a part of the territory of a state. It is only the inter-oceanic canals which deserve consideration at
international law. These inter-oceanic canals, which artificially constructed waterways, have
been the subject-matter of special treaties. The three canals which have been subject of such
treaties are: The Suez, he Panama, and The Kiel Canal.
The Suez Canal

The Convention of Constantinople of 1888 provided the rules regulating the possession of the
Suez Canal. By this Convention, the canal was to be freely open in times of peace, as well as of
war, to all nations. No attempt to restrict this free use of the canal is allowed in times either of
peace or of war. The canal can never be blockaded. No act of hostility is allowed either inside the
canal itself the canal itself or within three sea miles from its ports. Warships are not allowed to
stay for more than 24 hours in harbors of Port Said or Suez. No permanent fortifications are
allowed in the canal. The canal is a territorial part of Egypt. In 1956, Egypt nationalized the Suez
Canal. Great Britain and France being of the opinion that such nationalization might impair the
free rights of states to use the canal, protested against such nationalization. Ultimately, it resulted
in the Anglo-French intervention against Egypt in the Canal Zone. The freedom of passage
should be maintained without discrimination, overt or covert. The canal should be insulated from
the blockades of any country. Tolls and charges should be fixed by agreements.
The Panama Canal
From its opening in 1914 until 1979, the Panama Canal was controlled solely by the United
States, which built it. In 1979, however, control of the canal passed to the Panama Canal

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Commission, a joint agency of the United States and the Republic of Panama, and complete
control passed to Panama at noon on December 31, 1999. Administration of the canal is the
responsibility of the Panama Canal Authority, which answers solely to the government of
Panama. The international status of the canal also is affected by two older treaties. In the Hay-
Pauncefote Treaty of 1901, the United Kingdom gave up its interest in an isthmian canal. And,
while the United States was free to take any measures in order to protect a canal, it agreed that
there would be ―entire equality‖ in the treatment of ships of all nations with respect to
―conditions and charges of traffic.‖ In the Thompson-Urrutia Treaty of 1914, the government-
owned vessels of Colombia were exempted from paying tolls.
The canal is to be free and open to the vessels of commerce and of war and of all nations on
terms of entire squalidly. It shall never be blockaded; nor shall any act of hostility be committed
within it. In brief, as in the case of Suez Canal, here also, rules for neutralizing it were provided
in the Treaty.
The Kiel Canal

The Kiel Canal, which connects Baltic with the North Sea, was constructed by Germany mainly
for strategic purposes. According to the Treaty of Versailles of 1919, The Kiel Canal and its
approaches shall be maintained free and open to the vessels of commerce and of war of all
nations at peace war of all nations at peace with Germany on terms of entire equality‖. This part
of the treaty was denounced by Germany in 1936. The status of the Kiel Canal was discussed by
the Permanent Court of International Justice in the Wimbledon’s Case. The Court held that a
belligerent warship through an inter-oceanic canal would not compromise the neutrality of the
riparian state.
(G) STATE JURISDICTION ON SERVITUDES

Oppenheim defines the state servitudes as the exceptional restrictions made by treaty on the
territorial supremacy of a state, by which a part or whole of its territory is, in a limited way,
made perpetually to serve a certain purpose of interest of another state. For example, a state
under a treaty may be obliged to allow passage of troops of a neighboring state, or may, in the
interest of a neighboring state, be prevented from fortifying a certain town in the frontier.
The following characteristics of servitude must be carefully noted:
 It is an exceptional restriction.
 It is not a general restriction upon territorial supremacy which, according to rules of
international law, concerns all states alike.
 This restriction is created under a treaty.
 It is a restriction on the territorial supremacy of a state.
As a result of this restriction, the whole or a part of the territory of one state is made to serve
perpetually certain purposes or interests of another state. As the territory is subject to this
restriction, the servitude is a right in rem in favor of the state which has the right. Therefore,

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even if the sovereign state over the territory changes, the territory would never the less be subject
to servitude.
Classification of International Servitudes

International servitudes are classified into positive and negative servitudes
(a) Positive servitudes are those which entitle one state to perform certain acts on the territory of
another state.
(b) Negative servitudes are those whereby one state is under an obligation to abstain from doing
certain acts on its territory.
The doctrine of International Servitude appears to be relatively modern. In seems to have been
imported from private law. Many writers, including Judge Lauterpacht, are critical of the
doctrine of International Servitude. In 1910, the Permanent Court of Arbitration, in the case of
the North Atlantic Fisheries Case, created the impression that the Court rejected the concept of
servitude. The dispute before the Arbitration Court in that case was that United States claimed
that Great Britain had granted certain fishery rights, and such rights constituted servitude. The
Permanent Court of Arbitration rejected the plea of the United States as rights of the states. It
was said an express grant must be proved to claim it. The permanent Court of Arbitration further
observed that the concept of servitude was rather obsolete and inconsistent with the modern
constitutional states and their sovereignty.
In the Right of passage over Indian Territory case (1960), a customary right of passage of
Portuguese civil persons, a civil official‘s enclave was recognised by the International Court of
Justice. However, the Court held that such a right is not a general right being inapplicable to
armed forces, armed police and arms and ammunition. The Court also held that the right was
hardly servitude in the strict sense, as the right was subject to regulation and control by India.
(H) JURISDICTION ON BAYS AND GULFS

The law regarding the bays and gulfs can be studied in two phases: The law as it was before the
decision of the international Court of Justice in the Anglo-Norwegian Fisheries Case and the law
as interpreted in that case.
The Law Prior To the Anglo-Norwegian Fisheries Case

Bays whose entrance was not more than six miles wide were considered to be internal or
territorial, and the maritime belt was measured from, a base line joining the two head lands. If
the entrance of a bay was wider than six miles, unanimity of opinion was lacking. Some writers
were of the opinion that bays with an entrance more than ten miles wide cannot belong to the
territory of the littoral state. There were others who did not impose this rigid ten-mile rule. For
example, Canada claimed the Hudson Bay, the entrance to which is fifty miles wide, as
territorial.

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The Law As Laid Down By the Anglo-Norwegian Fisheries Case

In the Anglo-Norwegian Fisheries Case, the International Court of Justice declined to adhere to
the laid down the following principles:
1. Where there has been a long and reasonable practice accepted by the other states, t treat
the waters of certain bays or gulfs as a part of the littoral state‘s international waters, such
a practice must be recognized by other states.
2. If there is no such practice, it is open to a littoral state, on the grounds of economic
necessity or close connection of the bay or gulf, to proclaim that the waters of the bay or
gulf are of the character of territorial waters.
3. The indentation of a bay or a gulf could be a factor determining the general direction of
the coast-line for the purpose of drawing the base line delimiting the extent of the
territorial sea.
The outcome of the decision in the Anglo-Norwegian Fisheries Case was that the ten-mile limit
rule was rejected. Though the case did not lay down a definite limit on the entrance of the
curvature of the cost to constitute a bay, yet it laid down the criteria for prescribing such a limit.
The decision emphasizes the face that bays and gulf are to be treated differently from the open
coast, as the bays and gulfs might raise problems of defense or national integrity or of commerce
of the littoral state but Lauterpacht is rather critical of the decision, and he thinks that the legal
concept of a bay needs further judicial clarification or international regulation.
It is to be noted that the Geneva Convention of 1958 on the law of the sea has attempted to
define a bay, as follows: The indentation shall not, however, be regarded as a bay unless its area
is large as or larger than that of the semi-circle whose diameter is a line drawn across the mouth
of that indentation.‖ This means that, to be a bay, an indentation must penetrate in land to a
distance equal to at least half its breadth at the mouth.
(I) JURISDICTION OF THE HIGH SEAS

According to Oppenheim, ―the open sea or the high seas is the coherent body of salt water all
over the greater part of the globe, with the exception of the maritime belt and the territorial
straits, gulfs, and bays, which are parts of the sea, but not parts of the open sea‖. Therefore, the
open sea may be defined as all parts of the sea which are not: The Territorial Sea; or Internal
Waters.
Rights of the Freedom of the Open Sea

Although in ancient times, and the first half of the middle Ages, navigation on the open sea was
free to everybody, in the latter half of the Middle Ages, some maritime states began to claim
their sovereignty over parts of the open sea. For several hundred years, such claims were
asserted. It was Grotius who, for the first time, attacked this concept of maritime sovereignty. He
contended that the sea cannot be state property, because no state could really take into possession

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through occupation such sea, and that consequently, the sea is by nature free from, the
sovereignty for any state. Grotius was severely criticized by many authors of different nations.
But gradually, other writers followed Grotius and the concept of open sea acquired great support.
Besides, as Hall has pointed out, the principle of the freedom of the open sea began to develop
with the mutual and obvious interests of the maritime nations. The freedom of the open sea was
seen to correspond to the general interests of all states.
Freedom of the Open Sea

The concept of the freedom of the open sea signifies the following:
 The open sea is not, and never can be, under the sovereignty of any state whatever.
 No state has, as a rule, a right to exercise its legislation, administration, jurisdiction, or
police power over parts of the open sea.
 No state has a right to acquire parts of the open sea through occupation.
 There is absolute freedom of navigation on the high seas for vessels of all nations,
whether merchant men or warships.
 No state may exercise jurisdiction over ships within the open sea not bearing its flag.
 A state may exercise jurisdiction over a ship sailing under its flag.
 There is absolute freedom of flight above the open sea for all aircrafts.
 Every state and its citizens are entitled to make use of the high seas for laying submarine
cables and oil pipe lines.
The above-mentioned principles of the ―freedom of the open sea‖ must now be understood
subject to the rules of international law regarding the Continental Shelf and the Contiguous
Zones.
Limitations of the Freedom of Open Sea

Though there is freedom of the open sea, certain rules to regulate the freedom of the open sea are
recognized in the interest of avoiding conflicts and creating a legal order in the open sea. They
are the following: All vessels, public or private, on the high seas are subject to the jurisdiction,
and entitled to the protection of the state under whose maritime flag they sail. Therefore, no ship
can sail under a particular flag, without proper authority from the Flag state. There should be
some ―genuine link‖ between a vessel and the state which grants the right to fly its flag. Vessels
under an unauthorized flag are liable to capture and confiscation by the state whose flag has
wrongfully been raised and the warships of any state may call on suspicious vessels to show their
flag. If there is reasonable ground for suspecting that a merchant ship is engaged in piracy or the
slave trade, it may be boarded and, if necessary, searched.
The Right if ―Hot pursuit‖ : When a foreign vessel infringes the laws and regulations of a coastal
state while in the territorial waters of such state, such state may pursue and arrest the foreign ship
even on the high seas. This right is known as the right of ―Hot pursuit‖. This can be exercised
provided the following conditions are fulfilled:

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 The pursuit must commence immediately while the foreign ship is still within the
territorial waters.
 The pursuit must be continuous and uninterrupted.
 A visual or auditory signal must have been given, asking the ship to stop.
 The pursuing ship must be either a airship or a military aircraft or an authorized patrol
vessel.
 The regulation or the law infringed must be either a law regarding revenue or fishery or a
law affecting vitally the interests of the coastal state.
 When there is a grave suspicion that a foreign vessel is a source of imminent danger to
the sovereignty or security of that state, in the interests of its protection, the coastal state
may exercise jurisdiction over foreign ships, even when they are in the open sea.
 Certain international conventions might confer rights on the states to the high seas.
During times of war, a belligerent state has a general right to search ships of neutral countries to
prevent the carriage of contraband. All states are under an obligation, both according to
customary rules of international law and International Conventions, like the Brussels‘
Convention of 1910, to observe certain rules relating to the safety of navigation. There is a
controversy regarding the rights of states to close certain parts of the high seas as warning areas
for the purpose of conducting nuclear experiments. Some hold that this contravenes the freedom
of the open sea, but others think that this is permissible as a measure of self-defense.
Conservation of the Living Resources of the High Seas

The Convention of Fishing and Consecration of the living resources of the high seas, signed on
April 29, 1958, lays down the following rules on the matter:
 All states may freely engage in fishing on the high seas, subject to their treaty obligations
and to the interests and right of coastal states.
 A state, whose nationals are fishing any stock or stocks in any areas of the high seas not
exploited by citizens of other states, is bound to enact conservation measures.
 When the nationals of two or more states are so engaged, those states are to prescribe
conservative measures by a common agreement.
 A coastal state has a special interest in the maintenance of the productivity of the living
resources of the high seas in any area adjacent to its territorial sea.
High Seas and Oil Pollution
On November 29, 1969, two Conventions were adopted at Brussels, namely, the Intervention on
High Seas in cases of Oil Pollution Casualties and the International Convention on Civil
Liabilities for Oil Pollution Damage.
The First Convention enables the states which are parties to the Convention to take defensive
measures against pollution or threat of pollution only following upon maritime casualty or acts
reacted to such casualty. The self-defensive measures are to be proportionate to the actual or
threatened damage, which could be taken recourse to in consultation with other states affected.

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The Second Convention imposes the principle of absolute liability on the Tanker-owner, unless
he can prove that the damage-
 Resulted from war, hostilities, civil war, insurrection or some unavoidable natural
phenomenon; or
 Was caused by an act or an omission, with intent to cause damage, by a third party; or
 Was wholly caused by the negligence or wrongful act of a Government or authority
responsible for maintaining lights or providing navigational aids.
(J) UN LAW OF THE SEA CONVENTION (1982)
Background of the Convention
On 1 November 1967, Malta's Ambassador to the United Nations, Arvid Pardo, asked the nations
of the world to look around them and open their eyes to a looming conflict that could devastate
the oceans, the lifeline of man's very survival. In a speech to the United Nations General
Assembly, he spoke of the super-Power rivalry that was spreading to the oceans, of the pollution
that was poisoning the seas, of the conflicting legal claims and their implications for a stable
order and of the rich potential that lay on the seabed.
Pardo ended with a call for "an effective international regime over the seabed and the ocean floor
beyond a clearly defined national jurisdiction". "It is the only alternative by which we can hope
to avoid the escalating tension that will be inevitable if the present situation is allowed to
continue", he said. Pardo's urging came at a time when many recognized the need for updating
the freedom-of-the-seas doctrine to take into account the technological changes that had altered
man's relationship to the oceans. It set in motion a process that spanned 15 years and saw the
creation of the United Nations Seabed Committee, the signing of a treaty banning nuclear
weapons on the seabed, the adoption of the declaration by the General Assembly that all
resources of the seabed beyond the limits of national jurisdiction are the common heritage of
mankind and the convening of the Stockholm Conference on the Human Environment. What
started as an exercise to regulate the seabed turned into a global diplomatic effort to regulate and
write rules for all ocean areas, all uses of the seas and all of its resources? These were some of
the factors that led to the convening of the Third United Nations Conference on the Law of the
Sea, to write a comprehensive treaty for the oceans.
Resolutions Adopted on 30th April, 1982

Ultimately, the conference on the Law of seas adopted a resolution on 30th April, 1982. A
significant feature of this resolution is that the convention accepted the concept of 12 nautical
miles as the territorial sea. The resolution by the conference consists of 320 Articles. The
resolution brings in a new idea of contiguous zone 24 nautical miles
The resolution has accepted the concept of 200 nautical miles coastal as exclusive economic
zone to appertain to the coastal state. The concept of the exclusive economic zone is that the

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coastal states may have sovereign rights for the purpose of exploring, exploiting, conserving and
managing the industrial resources of the exclusive economic zone. Such a state would also have
jurisdiction (with due regard to the rights of two other states) as regards the establishment and
use of artificial islands and structures, protection and preservation of marine environment, etc.
It may be noted that in the exclusive economic zone, the traditional freedoms of the high seas,
e.g., navigation, over-flight of aircraft, lying of cables and pipelines, are not affected. If any
conflict arises as to which state has the right or jurisdiction, such conflict is to be resolved ―on
the basis of equity and in the light of all the relevant circumstances.‖ The U.N. Convention also
deals with other practical aspects of the exclusive economic zone, e.g., construction of artificial
islands, resources (like migratory birds and marine animals), etc. It is interesting to note that
although the United States was opposed to the convention, it has nevertheless, by a Presidential
Proclamation of 10th March, 1983, explicitly recognized and adopted the concept of the
exclusive economic zone.
Another important controversy that has been attempted to be saved is regarding the sea-be
resources. It is to be noted that sea –beds beyond territorial sea, continental shelf and contiguous
zones afford great opportunities of not only exploiting the live resources of the sea, but also of
the mining resources of the sea-bed. There have been countries which have been exploiting these
resources, and they claim that no other state can interfere with their right or exploit the resources.
But at the same time, there have been claims of under-developed countries that such right to
exploit the sea-bed resources under the high seas has to be subject to some international Regime.
It is satisfactory to note that the resolution of 30th April, 1982 has almost accepted the ―parallel
system‖ advocated by Dr. Henry Kissinger. As a result of this acceptance, it was decided that
there shall be an ―International Sea-bed Authority‖ based on the principle of universal
membership. The authority shall have 36 members. In addition to this, there shall also be a
business organization called ―Enterprise‖ for conducting of sea-bed resources for the benefit of
all mankind.
The 1982 Convention (vide Art. 74) provides that the delimitation of the exclusive economic
zone between states with opposite or adjacent coasts is to be effected by agreement on the basis
of international law to arrive at an equitable solution.
In the Gulf of Maine case [Canada v. U.S.A. (1984)] which dealt with Delimitation of the
Maritime Boundary in the Gulf of Maine Area, the Chamber maintained that in deciding the
delimitation of both continental shelf and fishery zone, those criteria should be employed which,
by their neutral character, were best suited for employment in a multi-purpose delimitation. In
the case before it, the chamber utilized geographical criteria. It held that the practical methods to
be employed to be as suitable for the delimitation of the sea-bed and subsoil as to that of the
superjacent waters and their living resources, and the chamber therefore concluded that only

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geographical methods would be utilized. It further held that any agreement or other equivalent
solution should involve the application of equitable criteria. Accordingly, it refused to apply the
parties‘ respective scale of fishing or petroleum exploitation. Since this could not serve a sound
equitable criterion, unless it was shown that – ―unexpectedly the overall result should appear
radically inequitable as entailing dissections repercussions on the subsistence and economic
development of the population concerned‖.
Libyan Arab Jamahiriy V. Malta [The continental shelf case (1985) This case dealt with
delimitation of the continental shelf between states with opposite or adjacent coasts. In this case,
the International Court refuted the contention that the respective economic position of the parties
concerned could be taken into account. But it did acknowledge that possibly security and defence
interests might be given cognizance.
Main Features of the conventions
The Conference was convened in New York in 1973. It ended nine years later with the adoption
in 1982 of a constitution for the seas - the United Nations Convention on the Law of the Sea.
During those nine years, shuttling back and forth between New York and Geneva,
representatives of more than 160 sovereign States sat down and discussed the issues, bargained
and traded national rights and obligations in the course of the marathon negotiations that
produced the Convention.
The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of
Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in
New York. In an attempt to reduce the possibility of groups of nation-states dominating the
negotiations, the conference used a consensus process rather than majority vote. With more than
160 nations participating, the conference lasted until 1982. The resulting convention came into
force on November 16, 1994, one year after the sixtieth state, Guyana, ratified the treaty.
The convention introduced a number of provisions. The most significant issues covered were
setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones
(EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of
the marine environment, scientific research, and settlement of disputes. The convention set the
limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline
follows the low-water line, but when the coastline is deeply indented, has fringing islands or is
highly unstable, straight baselines may be used.) The areas are as follows:
1. Internal waters
This part covers all water and waterways on the landward side of the baseline. The coastal state
is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage
within internal waters.

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2. Territorial waters
Out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate use, and
use any resource. Vessels were given the right of innocent passage through any territorial waters,
with strategic straits allowing the passage of military craft as transit passage, in that naval vessels
are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is
defined by the convention as passing through waters in an expeditious and continuous manner,
which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing,
polluting, weapons practice, and spying are not "innocent", and submarines and other underwater
vehicles are required to navigate on the surface and to show their flag. Nations can also
temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is
essential for the protection of its security.
3. Archipelagic waters
The convention set the definition of Archipelagic States in Part IV, which also defines how the
state can draw its territorial borders. A baseline is drawn between the outermost points of the
outermost islands, subject to these points being sufficiently close to one another. All waters
inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these
waters (like internal waters), but foreign vessels have right of innocent passage through
archipelagic waters (like territorial waters).
4. Contiguous zone
Beyond the 12 nautical mile limit there was a further 12 nautical miles or 24 nautical miles from
the territorial sea baselines limit, the contiguous zone, in which a state could continue to enforce
laws in four specific areas: pollution, taxation, customs, and immigration.
Exclusive economic zones (EEZs)
These extend from the edge of the territorial sea out to 200 nautical miles from the baseline.
Within this area, the coastal nation has sole exploitation rights over all natural resources. In
casual use, the term may include the territorial sea and even the continental shelf. The EEZs were
introduced to halt the increasingly heated clashes over fishing rights, although oil was also
becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was
soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in
waters 4000 metres deep. Foreign nations have the freedom of navigation and over flight, subject
to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.
5. Continental shelf
The continental shelf is defined as the natural prolongation of the land territory to the continental
margin‘s outer edge, or 200 nautical miles from the coastal state‘s baseline, whichever is greater.
A state‘s continental shelf may exceed 200 nautical miles until the natural prolongation ends.
However, it may never exceed 350 nautical miles from the baseline; or it may never exceed 100

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nautical miles beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters).
Coastal states have the right to harvest mineral and non-living material in the subsoil of its
continental shelf, to the exclusion of others. Coastal states also have exclusive control over living
resources "attached" to the continental shelf, but not to creatures living in the water column
beyond the exclusive economic zone.
Aside from its provisions defining ocean boundaries, the convention establishes general
obligations for safeguarding the marine environment and protecting freedom of scientific
research on the high seas, and also creates an innovative legal regime for controlling mineral
resource exploitation in deep seabed areas beyond national jurisdiction, through an International
Seabed Authority and the Common heritage of mankind principle.41
6. Landlocked States
What Is Land-Locked states?

Under Article124 of Convection "land-locked State" means a State which has no sea-coast.
These states have right to transit and access to the high sea through transit State. The ‗transit
state‘ means a State, with or without a sea-coast, situated between a land-locked State and the
sea, through whose territory traffic in transit passes. Land-locked States and transit States may,
by agreement between them, include as means of transport pipelines and gas lines and means of
transport other than those included in paragraph 1.
What are the rights and privileges available to Land-Locked states?

(1) Article125 provides the Right of access to and from the sea and freedom of transit.
(2) Land-locked States shall have the right of access to and from the sea for the purpose of
exercising the rights provided in this Convention including those relating to the freedom of the
high seas and the common heritage of mankind.
(3) To this end, land-locked States shall enjoy freedom of transit through the territory of transit
States by all means of transport.
(4) The terms and modalities for exercising freedom of transit shall be agreed between the land-
locked States and transit States concerned through bilateral, sub regional or regional agreements.
(5) Transit States, in the exercise of their full sovereignty over their territory, shall have the right
to take all measures necessary to ensure that the rights and facilities provided for in this Part for
land-locked States shall in no way infringe their legitimate interests.
(6) Traffic in transit shall not be subject to any customs duties, taxes or other charges except
charges levied for specific services rendered in connection with such traffic.
(7) Means of transport in transit and other facilities provided for and used by land-locked States
shall not be subject to taxes or charges higher than those levied for the use of means of transport
41
Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica:
Will Developed and Developing Nations Reach a Compromise? Wisconsin International Law Journal, 2003; 21:409

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of the transit State. For the convenience of traffic in transit, free zones or other customs facilities
may be provided at the ports of entry and exit in the transit States, by agreement between those
States and the land-locked States.
(8) Where there are no means of transport in transit States to give effect to the freedom of transit
or where the existing means, including the port installations and equipment, are inadequate in
any respect, the transit States and land-locked States concerned may cooperate in constructing or
improving them.
(9) Transit States shall take all appropriate measures to avoid delays or other difficulties of a
technical nature in traffic in transit. Ships flying the flag of land-locked States shall enjoy
treatment equal to that accorded to other foreign ships in maritime ports.
(10) This Convention does not entail in any way the withdrawal of transit facilities which are
greater than those provided for in this Convention and which are agreed between States Parties to
this Convention or granted by a State Party. This Convention also does not preclude such grant
of greater facilities in the future.
7. Establishment of Area under Part XI and the 1994 Agreement

Part XI of the Convention provides for a regime relating to minerals on the seabed outside any
state's territorial waters or EEZ (Exclusive Economic Zones). It establishes an International
Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the
seabed mining royalty. The United States objected to the provisions of Part XI of the Convention
on several grounds, arguing that the treaty was unfavourable to American economic and security
interests. Due to Part XI, the United States refused to ratify the UNCLOS, although it expressed
agreement with the remaining provisions of the Convention.
From 1983 to 1990, the United States accepted all but Part XI as customary international law,
while attempting to establish an alternative regime for exploitation of the minerals of the deep
seabed. An agreement was made with other seabed mining nations and licenses were granted to
four international consortia. Concurrently, the Preparatory Commission was established to
prepare for the eventual coming into force of the Convention-recognized claims by applicants,
sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but
a decline in the demand for minerals from the seabed made the seabed regime significantly less
relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had
removed much of the support for some of the more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the United
States) over the possibility of modifying the Convention to allow the industrialized countries to
join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding
international Convention. It mandated that key articles, including those on limitation of seabed
production and mandatory technology transfer, would not be applied, that the United States, if it
became a member, would be guaranteed a seat on the Council of the International Seabed

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Authority, and finally, that voting would be done in groups, with each group able to block
decisions on substantive matters. The 1994 Agreement also established a Finance Committee
that would originate the financial decisions of the Authority, to which the largest donors would
automatically be members and in which decisions would be made by consensus.
On February 1, 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of
the Sea (ITLOS) issued an advisory opinion concerning the legal responsibilities and obligations
of States Parties to the Convention with respect to the sponsorship of activities in the Area in
accordance with Part XI of the Convention and the 1994 Agreement.42 The advisory opinion was
issued in response to a formal request made by the International Seabed Authority following two
prior applications the Authority's Legal and Technical Commission had received from the
Republics of Nauru and Tonga regarding proposed activities (a plan of work to explore for
polymetallic nodules) to be undertaken in the Area by two State-sponsored contractors (Nauru
Ocean Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd.
(sponsored by the Kingdom of Tonga). The advisory opinion set forth the international legal
responsibilities and obligations of Sponsoring States and the Authority to ensure that sponsored
activities do not harm the marine environment, consistent with the applicable provisions of
UNCLOS Part XI, Authority regulations, ITLOS case law, other international environmental
treaties, and Principle 15 of the UN Rio Declaration.43
Signature and ratification

The convention was opened for signature on December 10, 1982 and entered into force on
November 16, 1994 upon deposition of the 60th instrument of ratification. The convention is
ratified by 161 states (including the Cook Islands and Niue) and the European Union.
Countries that have signed, but not yet ratified: (17) Afghanistan, Bhutan, Burundi,
Cambodia, Central African Republic, Colombia, El Salvador, Ethiopia, Iran, Democratic
People‘s Republic of Korea, Libya, Liechtenstein, Niger, Rwanda, Swaziland, United Arab
Emirates, United States (Although the United States helped shape the Convention and its
subsequent revisions, and though it signed the 1994 Agreement on Implementation, it has not
ratified the Convention).44
Countries that have not signed: (17) Andorra, Azerbaijan, Ecuador, Eritrea, Israel, Kazakhstan,
Kyrgyzstan, Peru, San Marino, South Sudan, Syria, Tajikistan, Timor-Leste, Turkey,
Turkmenistan, Uzbekistan, Venezuela (and excluding the states with limited recognition).
42
Case No. 17 - Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to
Activities in the Area - Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the
Sea (1 February 2011)
43
International Tribunal on the Law of the Sea Finally Renders Advisory Opinion Establishing that the
Precautionary Principle is Incorporated Within UNCLOS Law, ITSSD Journal on the UN Law of the Sea
Convention (March 22, 2011)
44
Roger Rufe, President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations,
October 21, 2003

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Non-Voting Member State: Vatican City

Non-State Observer: Palestine Liberation Organization
Significance of the Law of the Convention
Navigational rights, territorial sea limits, economic jurisdiction, legal status of resources on the
seabed beyond the limits of national jurisdiction, passage of ships through narrow straits,
conservation and management of living marine resources, protection of the marine environment,
a marine research regime and, a more unique feature, a binding procedure for settlement of
disputes between States - these are among the important features of the treaty. In short, the
Convention is an unprecedented attempt by the international community to regulate all aspects of
the resources of the sea and uses of the ocean, and thus bring a stable order to mankind's very
source of life.
"Possibly the most significant legal instrument of this century" is how the United Nations
Secretary-General described the treaty after its signing. The Convention was adopted as a
"Package deal", to be accepted as a whole in all its parts without reservation on any aspect. The
signature of the Convention by Governments carries the undertaking not to take any action that
might defeat its objects and purposes. Ratification of, or accession to, the Convention expresses
the consent of a State to be bound by its provisions. The Convention came into force on 16
November 1994; one year after Guyana became the 60th State to adhere to it.
Across the globe, Governments have taken steps to bring their extended areas of adjacent ocean
within their jurisdiction. They are taking steps to exercise their rights over neighbouring seas, to
assess the resources of their waters and on the floor of the continental shelf. The practice of
States has in nearly all respects been carried out in a manner consistent with the Convention,
particularly after its entry into force and its rapid acceptance by the international community as
the basis for all actions dealing with the oceans and the law of the sea.
The definition of the territorial sea has brought relief from conflicting claims. Navigation
through the territorial sea and narrow straits is now based on legal principles. Coastal States are
already reaping the benefits of provisions giving them extensive economic rights over a 200-mile
wide zone along their shores. The right of landlocked countries of access to and from the sea is
now stipulated unequivocally. The right to conduct marine scientific research is now based on
accepted principles and cannot be unreasonably denied. Already established and functioning are
the International Seabed Authority, which organize and control activities in the deep seabed
beyond national jurisdiction with a view to administering its resources; as well as the
International Tribunal for the Law of the Sea, which has competence to settle ocean related
disputes arising from the application or interpretation of the Convention.
Wider understanding of the Convention will bring yet wider application. Stability promises order
and harmonious development. However, Part XI, which deals with mining of minerals lying on

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the deep ocean floor outside of nationally regulated ocean areas, in what is commonly known as
the international seabed area, had raised many concerns especially from industrialized States.
The Secretary-General, in an attempt to achieve universal participation in the Convention,
initiated a series of informal consultations among States in order to resolve those areas of
concern. The consultations successfully achieved, in July 1998, an Agreement Related to the
Implementation of Part XI of the Convention. The Agreement, which is part of the Convention,
is now deemed to have paved the way for all States to become parties to the Convention.
LAW OF AIR SPACE, OUTER SPACE & TELECOMMUNICATION
(a) Legal Regime of the Air
What Is International Law Of Air?

In various mode of transport, air transport is one of the most sophisticated means of transport in
modern days for passenger as well as for goods. The law governing the air transport of passenger
and also carriage of goods is traditionally the subject matter of International law of air which is a
part of Public International Law. International law of Air is the body of law directly or indirectly
concerned with civil aviation. Aviation in this context extends to both heavier-than-air and
lighter-than-air aircraft. Because of the essentially international character of aviation, a large part
of air law is mostly international uniform law (rules of national law that have by agreement been
made internationally uniform). In international air law is concerned, an international agreement
or an amendment thereto are binding only on states that are parties to it. Air Law and space law
are separate and distinct branches of law, although they are occasionally treated as one
("Aerospace Law").
Air law is the body of public and private law, both national and international that regulates
aeronautical activities and other uses of airspace. Space law, on the other hand, regulates
activities of states and private entities in outer space, primarily the use of satellites. The essential
difference between air law and space law stems from the legal status of airspace and of outer
space. Whereas airspace, except over the high seas and Antarctica, is under the sovereignty of
subjacent states, outer space is governed by the regime of freedom. The question of boundaries
between outer space and airspace is awaiting international agreement; it is virtually certain,
however, that the boundary will not be placed higher than 100 km above sea level.
Theories of territorial Sovereignty over Air

There are five theories in connection with the question of the sovereignty of a state over the
superjacent air-space:
(a) According to the first theory, the subjacent territorial state has absolute sovereignty over
the whole space of atmosphere above its territory to an unlimited height. Therefore, it can
prohibit the flying of the foreign aircrafts over that part of the atmosphere

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(b) According to the second theory, the air-space above a state is absolutely free and open,
being analogous to high seas.
(c) According to the third theory, the territorial sovereignty of the subjacent state extends only
up to a particular height of the air-space. The remaining part of the air-space is free and
open. This theory extends the analogy of the maritime belt and the open sea to the air-
space.
(d) The fourth theory is only modification of the third theory mentioned above. According to
this theory, a subjacent state has a right to impose regulations, to protect its interest, on
passing foreign aircrafts, even above the air-belt, though such air-space beyond the belt is
not subject to the sovereignty of the state.
(e) According to the fifth theory, the sovereignty of the subjacent state extends to unlimited
air-space above it, but the other states have a servitude or right of innocent passage for
their civil aircrafts.
(b) AIR NAVIGATION
PARIS CONVENTION OF 1919
The development of large-scale air transport after World War I brought with it the need for
regulation, both national and international. In 1919 a meeting of the victorious nations of World
War I resulted in the International Convention for Air Navigation, commonly known as the Paris
Convention. The 33 countries were the signatory nation; US is also one of the signatory state but
did not ratify the convention. The most of the air laws in the world were modeled on the basis of
this convention. The convention accepted the following four broad principles:
(a) The convention recognized the only theory that was the first theory, which conceded
sovereignty to an unlimited height over its air-space without prejudice to innocent
passage by aircraft of another state.
(b) It also provided that each aircraft (like each ship) must have a registered nationality.
Rules were adopted as to the airworthiness of aircraft and the certification and licensing
of pilots.
(c) On account of the vast technical development and consequent increase in aviation, new
No aircraft can be registered in more than one country.
(d) An International Commission for Aerial Navigation (ICAN or CINA) was created with
headquarters in Paris. In 1937 an Inter-American Technical Aviation Conference decided
on the creation of a Permanent American Aeronautical Commission (CAPA). Both were
superseded by the establishment in 1947 of the International Civil Aviation Organization
(ICAO) under the 1944 Chicago Convention.
CHICAGO CONVENTION OF 1944
The World War II emphasized the need for sounder regulation of international air transport and
for uniformity of equipment, laws, and regulation. An international civil aviation conference of

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52 nations, not including the USSR, met in Chicago in 1944. This Convention recognized the
―five freedoms of the air‖ which are as follows—
1. Freedom to fly across the territory of a state without landing;
2. Freedom to land for non-traffic purposes;
3. The right to disembark in a foreign country traffic from the country of registry of the
aircraft;
4. The right to pick up in a foreign country traffic destined for the country of registry;
5. The right to carry traffic between two foreign countries.
There was no general support to these freedoms. Only the first two freedoms (are called transit
rights) were supported by the majority of the states represented in the Conference, however, the
fifth was bitterly opposed. The majority of states signed the agreement containing the first two
freedoms known as ―The International Air Services Transit Agreement‖. The other rights are
called traffic rights, which have not been approved by the majority. Less than half of the states
signed the other these rights. This agreement is known as ―The International Air Transport
Agreement‖. This Conference drew up also a Convention, setting out general principles of
International Air Law.
The convention set up a provisional body in 1947, the same then became the International Civil
Aviation Organization (ICAO) which provides general rules and mediates international concerns
to an extent regarding aviation law. It is affiliated with the United Nations as specialized agency,
with headquarters in Montreal. It has a plenary Assembly, which holds the budgetary power; a
permanent Council elected triennially, which, among other things, adopts the Annexes to the
Convention; an Air Navigation Commission; an Air Transport Committee; and a plenary Legal
Committee, which discusses matters of air law of common interest to members and prepares
draft conventions for their consideration and acceptance. The ICAO Council, under the Chicago
Convention, may also function as either a conciliation body or a judicial organ in disputes
between members. The Soviet Union joined in 1970, making ICAO membership almost
universal. There have been several general conferences since the Chicago Convention and many
bilateral agreements have been concluded by parties to it.
The international law on air did not change much as a result of the Chicago Conference of 1944.
The principles adopted in the Convention of Chicago are almost similar to those adopted in the
Convention of 1919. The Chicago Conference also reiterated the principle of the exclusive and
complete sovereignty of the subjacent state over the air-space above. It adopted similar principles
regarding registration of aircraft, innocent passage and internal air-traffic, According to the
Chicago Conference, internal air-traffic, i.e. air Cabotage, could be reserved to the territorial
state. The other states have no right of flight over the territory of the subjacent take without its
special authorization. In conclusion, it may be said that the international law of the air has
remained to be almost the same as it was at the end of First World War.

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Contemporary Problem with Legal Regime of the Air

A basic principle of international air law is that every state has complete and exclusive
sovereignty over the airspace above its territory, including its territorial sea. At the turn of the
20th century the view that airspace, like the high seas, should be free was sometimes advanced.
But the principle of airspace sovereignty was unequivocally affirmed in the Paris Convention on
the Regulation of Aerial Navigation (1919) and subsequently by various other multilateral
treaties. The principle is restated in the Chicago Convention on International Civil Aviation
(1944). Airspace is now generally accepted as an appurtenance of the subjacent territory and
shares the latter's legal status. Thus, under the Geneva Convention on the High Seas (1958) as
well as under international customary law, the freedom of the high seas applies to aerial
navigation as well as to maritime navigation. Vertically, airspace ends where outer space begins.
It follows from the principle of airspace sovereignty that every state is entitled to regulate the
entry of foreign aircraft into its territory and that persons within its territory are subject to its
laws. States normally permit foreign private (i.e., nongovernmental and noncommercial) aircraft
to visit or fly through their territory without too much difficulty. Such aircraft registered in states
that are parties to the 1944 Chicago Convention are, under the convention, allowed into the
territories of all other contracting states without prior diplomatic permission if not engaged in the
carriage of passengers, mail, or cargo for reward.
Commercial air transport is divided into scheduled air services and nonscheduled flights. Charter
flights fall mostly, but not invariably, into the latter category. Under the Chicago Convention,
contracting states agree to permit aircraft registered in the other contracting states and engaged in
commercial nonscheduled flights to fly into their territory without prior diplomatic permission
and, moreover, to pick up and discharge passengers, cargo, and mail, but in practice this
provision has become a dead letter.
For scheduled air services, the privilege of operating commercial services through or into a
foreign country was, at the time of the 1944 Chicago conference, split into five so-called
freedoms of the air. The first is the privilege of flying across a country nonstop; the second, of
flying across with a stop for technical purposes only. These two freedoms are also known as
transit rights. A large number of ICAO members are parties to the 1944 International Air
Services Transit Agreement, placing these rights on a multilateral basis. The other freedoms of
the air are known as traffic rights, referring to passengers, mail, or cargo carried on a commercial
service. The third of the five freedoms is the privilege of bringing in and discharging traffic from
the home state of the aircraft or airline; the fourth is that of picking up traffic for the home state
of the aircraft or airline; the fifth is that of picking up traffic for or discharging traffic from third
states in the territory of the state granting the privilege. This fifth freedom is the main bargaining
point in the exchange of traffic rights among states. Attempts have been made since 1944 to
create other freedoms, but each new freedom usually represents in practice a new restriction.

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Efforts to conclude a widely acceptable multilateral agreement on traffic rights were

unsuccessful, and such rights have continued to be handled through bilateral international
agreements. These agreements fix the routes to be served, the principles governing the capacity
of the agreed services (frequency of the service multiplied by the carrying capacity of the aircraft
used), and the procedures for the approval of fares and tariffs by the respective governments.
The right to carry domestic traffic between points within a state is normally reserved to that
state's own airlines. A bilateral agreement signed at Bermuda in 1946 between the United
Kingdom and the United States set a pattern that has generally been followed, although the
formal Bermuda-type agreement is likely to be accompanied by confidential memoranda
attaching various restrictions.
The Problems of the Abuse of Air

There are two more problems concerning the right of states over the superjacent air-space:
(a) Radio Communication-The principles in this respect that every state has a right to prevent
injurious transmission of radio waves from traversing its air-space. Therefore, every state is
under an obligation in international law to prevent the use of its territory for the transmission of
the radio waves injurious to other state.
(b) Radiations in the atmosphere-The problem of atomic or nuclear tests and the use of rain-
making devices have raised a controversy amongst writers on international law. One view is that
such test and devices must be banned as they are likely to cause injury to the air-space of other
states. The second view is that such use of the air-space is absolutely necessary in the interest of
the security and the defence of the state conducting the experiments. Therefore, they are not
opposed to international law. Prof. Starke takes a middle view and suggests that as no state is an
insurer for its neighboring states against the damage to the air-space, a state has a right to
conduct such experiments, but at the same time, the state is under a duty not to cause gross or
serious damage which can be reasonably avoided and a duty not to permit the escape of
dangerous objects.
AIRPORTS
Members of ICAO, in order to comply with their obligations under the Chicago Convention,
have to make certain that such airports are open to aircraft of all other ICAO members under the
same conditions as they are open to national aircraft. Restrictions may be imposed on the noise
level of aircraft taking off or landing, as well as the general level of noise, vibration, smoke. In
order to secure safety of flight, restrictions may be imposed on the use of lands adjoining an
airport, such as the height of buildings or the planting of trees.
AIRCRAFT NATIONALITY
Among the most important points resolved in the 1919 Paris Convention were that aircraft
should have a nationality, that they should have the nationality of the state in which they were
registered, and that no aircraft could be validly registered in more than one state. The 1944

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Chicago Convention retained these principles. While both conventions preclude dual or multiple
registrations, the ICAO Council in 1967 recognized the possibility of joint registration of aircraft
by a number of states, and even ―international registration‖—without specifying what it meant.
The principle that every aircraft, at least every one that flies outside its country of origin, must
have a nationality is of cardinal importance in air law. At the international level, moreover, it
ensures that there will be no aircraft for which there is not a state answerable.
Under Article 31, ―every aircraft engaged in international navigation shall be provided with a
certificate of airworthiness issued or rendered valid by the State in which it is registered. Under
Article 30(a) of the Chicago Convention, aircraft of [i.e., having the nationality of] each
contracting State may, in or over the territory of other contracting States, carry radio transmitting
apparatus only if a license to install and operate such apparatus has been issued by the
appropriate authorities of the State in which the aircraft is registered.
As regards the operating personnel of the aircraft, the Chicago Convention provides that the pilot
of every aircraft and the other members of the operating crew of every aircraft engaged in
international navigation shall be provided with certificates of competency and licenses issued or
rendered valid by the State in which the aircraft is registered.
Jurisdiction With Regard To Aircraft

The frequent incidents of hijacking have resulted in the development of International Law
relating to jurisdiction with regard to aircraft. There have been three Conventions regarding this
matter:
 The Tokyo Convention of September 14, 1963, on Offences and Certain other Acts
committed on Board Aircraft.
 The Hague Convention for the Suppression of Unlawful Seizure of Aircraft of Dec. 16, 1970.
 The Montreal Convention of 1971, for the Suppression of Unlawful Acts against the Safety
of Civil Aviation.
 The Tokyo Convention (1963)
The objects of the Convention are the following: (i) To ensure that persons committing crimes on
board an aircraft in flight, or on the surface of the high seas, or an area outside the territory of
any country, or committing acts aboard such aircraft to the danger of air safety would not go
unpunished, simple because no country would assume jurisdiction to apprehend or try them. (ii)
For protective disciplinary purposes, to give special authority and powers to the aircraft
commander, members of the crew and even passengers.
The first object is achieved by providing that the country of registration of the aircraft is
competent to exercise jurisdiction over the offences and the terrorist acts. Further, it is also
provided that the offences committed aboard an aircraft are, for the purpose of extradition, to be

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treated as if they occurred also in the country of registration. Secondly, if the offenders are found
in a country which was a party to the Convention, they would be obliged to extradite the offender
to the country of registration.
To achieve the second object, the Convention enabled the aircraft commander to do certain acts
in respect of such offenders. However, it may be noted that the Tokyo Convention is not
applicable to aircraft used in military, customs, or police services.
Crimes against Aircraft: Piracy

The 1958 Geneva Convention on the High Seas intends to be declaratory of general international
law when it defines the offense of piracy principally as any illegal acts of violence, detention or
any act of depredation, committed for private ends by the crew or the passengers of a private
[i.e., nongovernmental and not noncommercial] ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board
such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
The convention defines the effect of piracy under international law as follows: On the high seas,
or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or
aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and
seize the property on board.
A state, having done so, may decide upon the penalties to be imposed and the fate of the ship, the
aircraft, or the property. This definition of piracy deliberately excludes acts committed for
political motives, as well as acts confined within a ship or aircraft, such as mutiny or the
hijacking of an aircraft by its passengers or crew. Although some states, for example, the United
States, have in their own laws categorized hijacking as aircraft piracy, this in itself is unable to
bring about the consequences of piracy under international law.
Warsaw Convention on International Carriage by Air, 1929

This convention is applicable to transport of goods and passengers and also rights and
responsibilities of the shippers and other parties. Problems of liability arising from the
international carriage of passengers, baggage, and cargo by aircraft are dealt with by the widely
accepted Warsaw Convention on International Carriage by Air, which was concluded in 1929,
amended in 1955 by The Hague Protocol, supplemented in 1961 by the Guadalajara Convention,
and further amended in 1971 by the Guatemala City Protocol. However, not every party of the
Warsaw Convention has accepted the 1955 or the 1971 amendment protocol; nor is a party that
accepts either protocol required denouncing the treaty which the protocol amends. The result is
that there are in fact three separate treaties (Warsaw, Warsaw–Hague, and Warsaw–Hague–
Guatemala City) with a number of states being parties to more than one.

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The contracting states to the Warsaw convention seek to reduce and eliminate problems of
conflict of laws by agreeing to adopt uniform rules in their internal laws governing the
international carriage of persons, baggage, or cargo by aircraft. The rules established by the
convention are mandatory in the sense that the parties to the contract of carriage cannot vary
them, especially not to the detriment of the consumer. They are also exclusive in the sense that
no additional claims can be brought against the carrier outside the terms of the convention.
In the event a passenger is injured or dies, or baggage or cargo is damaged or lost during
―international‖ carriage, the convention makes the carrier prima facie liable. In order to avoid
liability, the carrier has to prove that he and his servants and agents have not been at fault. His
liability may also be excluded in whole or in part if the injured person is wholly or partly to
blame for the damage. In return for the presumption of his liability, the carrier is given the
benefit of limited liability, a benefit that he forfeits if it is proved that the damage resulted from
his willful misconduct or that of his servants and agents. The convention lays down detailed rules
on the issuance and contents of the appropriate documents of carriage (passenger ticket, baggage
check, and air waybill) and enforces them with the penalty of absolute and unlimited liability.
(c) International Law of Outer Space
WHAT IS OUTER SPACE AND WHAT IS OUTER SPACE LAW?
Outer space lies beyond the currently undefined upper limit of a state‘s sovereign airspace. It was
declared free for exploration and use by all states and incapable of national appropriation by a
1963 UN General Assembly resolution. Outer space law is the body of regulations in
international law that governs conduct in and related to areas of space above Earth's lower
atmosphere.
The evolution of space law began with U.S. President Dwight D. Eisenhower's introduction of
the concept into the United Nations in 1957, in connection with disarmament negotiations. The
real beginning of space law can be traced to the launching on 4 October 1957 of Sputnik I, the
first artificial Earth satellite. Since that time the legal regulation of outer-space activities has
been largely centered in the UN Committee on the Peaceful Uses of Outer Space. The bulk of
space law consists of norms incorporated in 5 multilateral treaties.
Following the successful launchings of the Soviet satellite Sputnik 1 in 1957 and the U.S.
satellite Explorer 1 in 1958, both the United States and the U.S.S.R. took an active interest in the
development of international space policy. It was established that traditional laws of sovereignty
that allow any nation to claim for itself uninhabited and uncivilized lands are not viable in space
territories and that countries cannot extend the boundaries of their dominion indefinitely into the
space regions above them. In 1959 a permanent Outer Space Committee was formed for the

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purpose of maintaining the United Nations Charter and other international law in space, which
opened the way for peaceful exploration. In 1963 the Nuclear Test Ban Treaty was signed,
followed by an Outer Space Committee resolution to prohibit nuclear weapons testing in space.
Later that same year a UN General Assembly declaration acknowledged a free international
interest in space development and outlined rules assigning each nation individual responsibility
for dealing with transgressions of international law and for any resulting destruction.
International cooperation was recommended for the safeguarding of all astronauts in crisis
situations.
DOCTRINE OF SOVEREIGNTY AND OUTER SPACE

The recent developments in technology regarding space travel have raised several problems in
international law. The old rule that the usque an coelum, i.e., the doctrine of the sovereignty of
the subjacent state to an unlimited height, has become impracticable. Probably this doctrine is no
longer true law. During these years, when the space travelers have crossed the space above the
territories of the states, the subjacent states have not protested. Though it may be highly
controversial to maintain that the custom regarding the freedom of the outer space is already
established by the acquiescence of the subjacent states during this brief interval, yet it is very
difficult to maintain that subjacent states can claim sovereignty to an unlimited height over the
space above, because the outer space does not remain constant over the territory of any particular
subjacent state.
Though it cannot be said that customary rules of international law of definite nature have
emerged, yet there is a large measure of agreement on the broad principles relating to outer
space, which can be briefly summed up as follows:
1. The doctrine of sovereignty of the subjacent state to an unlimited height cannot work in
practice, because such vertical column does not remain permanently over the territory of a
state due to the rotation of the earth. There seems to be some agreement on the principle that,
for security purposes, there must be sovereignty up to some upper limit, but there is no
consensus as to a specific height for this.
2. Outer space beyond this upper limit is subject to international law and the United Nations
Charter, Such space is free for exploration and use by all states in conformity with
international law and is not subject to national appropriation.
OUTER SPACE TREATY OF 1967

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies 1967(known as the Outer Space Treaty).
This treaty was ratified by 63 participants in the United Nations. The treaty came into force on
Oct. 10, 1967. This document has been noted as a landmark in the development of international
space law; like most subsequent space-law agreements generated by the United Nations, it
remains in effect today among participating countries.

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Salient Features of the Treaty

1. The treaty establishes the principle of prohibition against national claims to sovereignty in
any part of outer space. It clearly says: ―Outer space, including other celestial bodies, is not
subject to national appropriation by claim of the sovereignty, by means of use or occupation
or by other means.‖
2. It is the duty of every state launching a satellite or object into the orbit or beyond to give due
notice of launching of such objects and information concerning such matters as orbit, weights
and radio frequencies.
3. It is the duty of every state launching object into orbit or beyond to take precautions to avoid
injury to other states, or contamination of upper atmosphere and outer space or impartment of
the free use or scientific exploration of the upper atmosphere and the outer space.
4. Communication by means of communication satellite should be freely available to all states
upon a global and non-discriminatory basis.
5. Each state launching an object into outer space retains its sovereign rights over the object, no
matter where it may be and where it may be found. Consequently, the launching state also
remains directly responsible for any injury caused by the object. Article VIII of the Treaty
provides that jurisdiction and control over satellites and other objects is in the outer space or
on a celestial body. Thus, the treaty accepts the national character of projectiles.
6. States are under a duty to facilitate passage of the object intended for the exploration for
peaceful purposes of outer space and to give aid to state
7. The treaty banned certain military activities, such as the deployment of weapons of mass
destruction in space and on celestial bodies;
8. The treaty urged common participation in the protection of space and terrestrial
environments; and provided for the open observation and inspection of each state's activities
and installations by others.
9. The most important part of the Treaty is that it reiterated the principles of freedom and
provided that the exploration and use of outer space should be carried out for the benefit of
all countries. Article I provides that ―space exploration us is be carried out for the benefit and
in the interest of all countries‖.
10. Article V of the space Treaty proclaims that parties shall regard astronauts as envoys of
mankind in outer space and shall render to them all possible assistance in the event of
accident, distress or emergency landing on the territory of another state party or on the high-
seas. It is also provided that when astronauts make such a landing, they will safely and
promptly be returned to the state of registry of their space vehicle.
CONVENTION ON INTERNATIONAL LIABILITY

Another important treaty, the 1972 Convention on International Liability for Damage Caused by
Space Objects, set out detailed rules regarding the recovery of damages for losses caused by
space objects. This Covenant imposes absolute liability on a launching state for damages caused

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by its space object on the surface of the earth or to the aircraft in flight. However, in the event of
damage being caused elsewhere than on the surface of the earth to a space object of one
launching state or to persons or to property on board, such a space object by a space object of
another launching state, the latter shall be held liable only if the damage is due to its fault of the
persons for whom it is responsible. It also provides for joint liability and a severely limited
exoneration from strict liability.
The Nuclear Weapons‘ Test Ban Treaty of 1963, under which states parties have undertaken
to prohibit, prevent, and not to carry out nuclear weapons test explosion beyond the limits of the
atmosphere, including the outer space.
Moon Treaty of 1979: The Treaty on Principles Governing the Activities of states in its
Exploration and Use if Outer Space including the Moon and other celestial Bodies, signed on
January 27, 1967. The Moon Treaty provided for the demilitarization of the Moon and other
celestial bodies and declared the Moon and its resources to be a ―common heritage of mankind.‖
Under the terms of the treaty, the parties are prohibited from placing nuclear arms or other
weapons of mass destruction in orbit, on the Moon, or on other bodies in space. Nations cannot
claim sovereignty over the Moon or other celestial bodies. Nations are responsible for their
activities in space, are liable for any damage caused by objects launched into space from their
territory, and are bound to assist astronauts in distress. Their space installations and vehicles
shall be open, on a reciprocal basis, to representatives of other countries, and all parties agree to
conduct outer-space activities openly and in accordance with international law.
Reading Material on Law of Air and Space

1. Shawcross & Beaumont on Air Law,3rd ed.by Keenan, Lester, & Martin, 2 vol. (1966)
2. Seabrooke, G.A., Air Law (1964)
3. McNair, The Law of the Air, 3rd ed. (1964)
4. Nathan & Barrowclough,―Civil Aviation,‖in Halsbury's 3rd ed.,vol.5, pp.1–248 (1953)
5. De Billyou, Air Law, 2nd ed. (1964)
6. Robert R. Wright, The Law of Airspace (1968)
7. Johnson, Rights in Air Space (1965)

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CHAPTER 11
DIPLOMATIC LAW
(A) Introduction
(B) Diplomatic Protection,
(C) Diplomatic Service,
(D) Consuls And Consulates
(E) Immunities
(A) INTRODUCTION
The diplomatic envoys are the official and the accredited agents or representatives of a state in
foreign countries. In modern times, most of the states have such diplomatic missions of a
permanent character in foreign countries. Today, the diplomatic representatives are the principal
machinery by which intercourse between states is conducted. Diplomacy is the established
method of influencing the decisions and behavior of foreign governments and peoples through
dialogue, negotiation, and other measures short of war or violence. Modern diplomatic practices
are a product of the post-Renaissance European state system. Historically, diplomacy meant the
conduct of official (usually bilateral) relations between sovereign states. By the 20th century,
however, the diplomatic practices pioneered in Europe had been adopted throughout the world,
and diplomacy had expanded to cover summit meetings and other international conferences,
parliamentary diplomacy, the international activities of supranational and subnational entities,
unofficial diplomacy by nongovernmental elements, and the work of international civil servants.
The term ‗diplomacy‘ is derived via French from the ancient Greek diplōma, means the folded
document conferred a privilege—often a permit to travel—on the bearer, and the term came to
denote documents through which princes granted such favors. Later it applied to all solemn
documents issued by chancelleries, especially those containing agreements between sovereigns.
Diplomacy later became identified with international relations, and the direct tie to documents
lapsed. In the 18th century the French term diplomate (―diplomat‖ or ―diplomatist‖) came to
refer to a person authorized to negotiate on behalf of a state.
(B) NATURE AND PURPOSE OF DIPLOMACY

Diplomacy is often confused with foreign policy, but the terms are not synonymous. Diplomacy
is the chief, but not the only, instrument of foreign policy, which is set by political leaders,
though diplomats (in addition to military and intelligence officers) may advise them. Foreign
policy establishes goals, prescribes strategies, and sets the broad tactics to be used in their
accomplishment. It may employ secret agents, subversion, war, or other forms of violence as
well as diplomacy to achieve its objectives. Diplomacy is the principal substitute for the use of
force or underhanded means in statecraft; it is how comprehensive national power is applied to

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the peaceful adjustment of differences between states. It may be coercive (i.e., backed by the
threat to apply punitive measures or to use force) but is overtly nonviolent. Its primary tools are
international dialogue and negotiation, primarily conducted by accredited envoys (a term derived
from the French envoyé, meaning ―one who is sent‖) and other political leaders. Unlike foreign
policy, which generally is enunciated publicly, most diplomacy is conducted in confidence,
though both the fact that it is in progress and its results are almost always made public in
contemporary international relations.
The purpose of foreign policy is to further a state's interests, which are derived from geography,
history, economics, and the distribution of international power. Safeguarding national
independence, security, and integrity—territorial, political, economic, and moral—is viewed as a
country's primary obligation, followed by preserving a wide freedom of action for the state. The
political leaders, traditionally of sovereign states, who devise foreign policy, pursue what they
perceive to be the national interest, adjusting national policies to changes in external conditions
and technology. Primary responsibility for supervising the execution of policy may lie with the
head of state or government, a cabinet or a nominally nongovernmental collective leadership, the
staff of the country's leader, or a minister who presides over the foreign ministry, directs policy
execution, supervises the ministry's officials, and instructs the country's diplomats abroad.
The purpose of diplomacy is to strengthen the state, nation, or organization it serves in relation to
others by advancing the interests in its charge. To this end, diplomatic activity endeavors to
maximize a group's advantages without the risk and expense of using force and preferably
without causing resentment. It habitually, but not invariably, strives to preserve peace;
diplomacy is strongly inclined toward negotiation to achieve agreements and resolve issues
between states. Even in times of peace, diplomacy may involve coercive threats of economic or
other punitive measures or demonstrations of the capability to impose unilateral solutions to
disputes by the application of military power. However, diplomacy normally seeks to develop
goodwill toward the state it represents, nurturing relations with foreign states and peoples that
will ensure their cooperation or—failing that—their neutrality.
When diplomacy fails, war may ensue; however, diplomacy is useful even during war. It
conducts the passages from protest to menace, dialogue to negotiation, ultimatum to reprisal, and
war to peace and reconciliation with other states. Diplomacy builds and tends the coalitions that
deter or make war. It disrupts the alliances of enemies and sustains the passivity of potentially
hostile powers. It contrives war's termination, and it forms, strengthens, and sustains the peace
that follows conflict. Over the long term, diplomacy strives to build an international order
conducive to the nonviolent resolution of disputes and expanded cooperation between states.
Diplomats are the primary—but far from the only—practitioners of diplomacy. They are
specialists in carrying messages and negotiating adjustments in relations and the resolution of
quarrels between states and peoples. Their weapons are words, backed by the power of the state
or organization they represent. Diplomats help leaders to understand the attitudes and actions of

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foreigners and to develop strategies and tactics that will shape the behavior of foreigners,
especially foreign governments. The wise use of diplomats is a key to successful foreign policy.
(C) CLASSIFICATION OF DIPLOMATIC ENVOYS

The question of classification of diplomatic envoys was a subject of controversy for a long time.
The Congress of Vienna in 1815 attempted to codify the classification order or precedence of
diplomatic envoys, - but with little success. In 1961 the UN Conference on Diplomatic
Intercourse and Immunities adopted the Vienna Convention on Diplomatic Relations to replace
the 19th-century rules of Vienna and Aix. It specifies three classes of heads of mission:
(1) Ambassadors or nuncios accredited to heads of state and other heads of missions of
equivalent rank,
(2) Envoys, ministers, and internuncios accredited to heads of state, and
(3) Chargés d'affaires accredited to ministers of foreign affairs. A chargé d'affaires ad
interim is a deputy temporarily acting for an absent head of mission.
Emissaries of the first two classes are usually titled ―extraordinary and plenipotentiary,‖ though
they are neither; special full powers are issued to enable an envoy to sign a treaty. Precedence
within each class is fixed by the date of presentation of credentials; otherwise, there is no real
distinction between them. The senior ambassador by length of service is the doyen (unless the
nuncio traditionally holds the post), who convenes and speaks for the local diplomatic corps as
needed.
(D) APPOINTMENT OF DIPLOMATIC ENVOYS
Under the Vienna Convention, the sending state must make certain that the agreement of the
receiving state has been given for the person who proposes to accredit as Head of the Mission to
that state. The Receiving state is not obliged to give reasons to the sending state sending state for
a refusal to agree. Two or more states may accredit the same person as Head of Mission to
another state, unless any objection is offered by the Receiving state. The appointment of an
individual as Ambassador is usually announced to the state to which he is accredited in certain
official papers known as Letters of Credence or Letters de Credence. Apart for the Letters of
Credence, the individual may take with him documents of Full Powers relating to a particular
negotiation or any other specific written instructions.
The state to which an Envoy is accredited may refuse to receive him on either of the following
grounds:
(a) That the diplomatic Envoy may not be received for the particular mission of negotiation
for which he has been sent; or
(b) Because a particular Envoy, who is not personally acceptable, is a persona non grata.

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The state refusing to receive the Envoy is under no obligation to specify the ground of its
objection. Generally, before a person is accredited as an Envoy, the state to which he is
accredited will be sounded and its assent will be obtained.
Credentials
Appointment of a new head of mission is a complex process. To avoid embarrassment, his or her
name is informally sounded. If the host country does not object, formal application for
agreement, or consent, is made by the envoy being replaced. Then the new ambassador is sent
forth with a letter of credence addressed by his head of state to the head of the host state to
introduce the ambassador as his or her representative. In most major capitals a copy of
credentials is now first provided privately to the foreign minister, after which the new
ambassador can deal with the foreign ministry and begin to call on his diplomatic colleagues.
Presentation of these credentials to the chief of state is, however, quite formal; in some states
with a keen sense of tradition, it may entail riding from the embassy to a palace in an open
carriage. The ceremony includes handing over the newly arrived ambassador's letters of credence
and those of recall of the predecessor and a short platitudinous speech or brief small talk. The
date of the formal presentation of credentials determines an ambassador's order of precedence
within the local diplomatic corps. Once it has been completed, an ambassador may proceed to
business with ministries other than the foreign ministry. At the UN, credentials are presented
without ceremony to the secretary-general. There is no doyen, because turnover is too rapid;
instead, the secretary-general annually draws the name of a country from a box, and precedence
occurs alphabetically in English beginning with that country.
The appointment of consuls is merely notified; they are entitled to some but not all diplomatic
privileges and immunities. They are located in the major cities of the host country, of which a
few may be citizens. Most belong to the diplomatic service of the sending state, for consular and
diplomatic services have been merged. Consuls issue visas, but their primary functions are
fostering commerce and aiding nationals of the sending state who are in difficulty.
(E) DIPLOMATIC TASKS

According to the Vienna Convention, the functions of a diplomatic mission include
1. The representation of the sending state in the host state at a level beyond the merely social
and ceremonial;
2. The protection within the host state of the interests of the sending state and its nationals,
including their property and shares in firms;
3. The negotiation and signing of agreements with the host state when authorized;
4. The reporting and gathering of information by all lawful means on conditions and
developments in the host country for the sending government; and
5. The promotion of friendly relations between the two states and the furthering of their
economic, commercial, cultural, and scientific relations.

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6. Diplomatic missions also provide public services for their nationals, including acting as a
notary public, providing electoral registration, issuing passports and papers for military
conscription, referring injured or sick nationals to local physicians and lawyers, and ensuring
nondiscriminatory treatment for those charged with or imprisoned for crimes.
Services to citizens and the local public are provided by junior and consular staff, whereas
specialized attachés engage in protection and much promotional activity. The ambassador is
charged with carrying out all the tasks of the diplomatic mission through subordinates or through
personal intervention with local authorities when necessary. Most ambassadors are now heavily
engaged in the promotion of trade and in assisting private companies in commercial disputes.
The head of mission, the head's spouse, and the deputy spend much time entertaining visiting
politicians and attending receptions—at which some business is conducted and information is
collected—but representation also entails lodging official or informal protests with the host
government or explaining and defending national policy. A diplomat's most demanding daily
activities, however, remain reporting, analyzing, and negotiating.
Reports are filed by telegram, telephone, facsimile, and e-mail, usually on an encrypted basis to
protect the confidentiality of information. One of the ambassador's key tasks is to predict a
developing crisis, a task accomplished through the gathering of information from an array of
sources and the use of experience and expert knowledge in identifying, analyzing, and
interpreting emerging key issues and patterns and their implications. The ambassador's duty is to
advise and warn, and he is expected to brief his government in detail and without distortion
about the content of his conversations with the host foreign minister, the prime minister, and
other key officials and politicians.
Beyond these functions, the ambassador negotiates as instructed. Negotiation is a complex

process leading to agreement based on compromise, if it reaches agreement at all. (The object of
international negotiation is not necessarily to reach agreement; it is to advance the interests in an
ambassador's charge.) The topic of negotiation and the timing of initial overtures are set by the
ambassador's foreign ministry. The foreign ministry (perhaps with cabinet involvement) also
specifies the diplomatic strategy to be used. Usually this is specific to the goals and
circumstances. For example, the Marshall Plan, through which the United States provided
several western and southern European countries with financial assistance after World War II,
was the strategy used by the U.S. to pursue its goals in Europe in 1947. The foreign ministry also
establishes broad tactics, often regarding initial demands, bargaining counters, and minimum
final position. For the rest the negotiator, either an ambassador or a special envoy, is in most
countries free to employ whatever tactics seem best.
These practices are fairly standard, though bilateral negotiations vary greatly and multilateral
ones or so. The parties have common interests to negotiate over and areas of disagreement to

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negotiate about. There are two basic approaches: tackling issues piece by piece and establishing
a framework of agreed principles at the outset. The latter works well, but, if it cannot be done,
the piecemeal approach is necessary.
In most negotiations initial demands far exceed expectations; concessions are as small and as
slow as possible, for early concession indicate eagerness and engender demands for more
concessions. There is intermittent testing of the other side's firmness and will for an agreement.
There may be indirection, lulling of the other party, and bluffing to gain an edge, though it is
important for diplomats not to be caught bluffing. Lying in diplomatic negotiations is considered
a mistake, but stretching or abridging the truth is permissible. Coercive diplomacy involving the
threat of force is risky but cheaper than war; other coercive pressures may include the setting of
conditions for concessions, such as debt rescheduling. Compensations to sweeten the offer,
warnings, and threats speed agreement if well timed, as do deadlines, whether agreed, imposed
by external events, or contained in ultimatums.
Negotiations vary according to whether the negotiating states are friends or foes, whether they
are of similar or disparate power, whether they genuinely want agreement or are negotiating only
for propaganda purposes or to avoid condemnation for refusing to negotiate, and whether their
aim is to prolong an existing agreement or to change the status quo, perhaps redistributing
benefits or ending hostilities. Some of the most difficult negotiations plow new ground, as do
those that create new cooperative or regulatory institutions, such as the International Sea-Bed
Authority, and those that transfer authority, such as the 1984 Sino-British agreement by which
Chinese sovereignty over Hong Kong was restored in 1997.
Whatever the problem, the diplomatic negotiator must display reliability and credibility. He tries
to create trust and to seem both honest and fair. He must strive to understand the other side's
concerns. Stamina, precision, clarity, courage, patience, and an even temper are necessary,
though calculated impatience or anger may be used as a tactic. A skilled negotiator has a sense of
timing, knowing when to use threats, warnings, or concessions. Sometimes a third party is
discreetly used to facilitate initial contact or to press the sides toward agreement. The negotiator
must be persuasive, flexible, tenacious, and creative in devising new solutions or reframing
issues from a new angle to convince the other party that agreement is in its interest. Smaller and
easier issues are tackled first, building an area of agreement, which is then stressed to create a
stake in success, whereas harder issues are postponed and played down. Through a process of
proposal and counterproposal, inducement and pressure- the diplomat keeps talking and, in the
last analysis, proceeds by trial and error.
Multilateral negotiations demand the same skills but are more complex. The process is usually
protracted and fragmented, with subsidiary negotiations in small groups and occasional cooling-
off periods. Skillful representatives of small states often play important roles. For example,

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American-led negotiations to end South African colonial rule in Namibia were significantly
aided by Martti Ahtisaari, a notably able Finnish diplomat acting on behalf of the UN. During
Ahtisaari's term as president of Finland (1994–2000), he also helped bring about a peace
settlement in Kosovo. The principal intermediary with the Iraqi government in an effort to secure
the release of Western hostages during the Persian Gulf War (1990–91) was the UN's Kofi
Annan, a highly regarded career diplomat from Ghana who would later win the Nobel Prize for
Peace as secretary-general of the UN. Decisions are reached by unanimity, majority, or
consensus (to avoid voting). For simplicity, changes are often made to apply across the board, as
with tariff cuts.
Iraq's refusal to end its occupation of Kuwait peacefully in 1990 and the failure of Israel and the
Palestinians from the mid-1990s to reach a negotiated settlement of their disputes are sad
reminders that when negotiations fail, the consequences can be bloody. In the end, war, not
words, remains the ultimate argument of the state. What cannot be decided by dialogue over a
negotiating table is often left to be decided on the battlefield or in civil conflict.
(F) DIPLOMATIC AGREEMENTS

If a negotiation succeeds, the result is embodied in an international instrument, of which there
are several types. The most solemn is a treaty, a written agreement between states that is binding
on the parties under international law and analogous to a contract in civil law. Treaties are
registered at the UN and may be bilateral or multilateral; international organizations also
conclude treaties both with individual states and with each other.
A convention is a multilateral instrument of a lawmaking, codifying, or regulatory nature.

Conventions are usually negotiated under the auspices of international entities or a conference of
states. The UN and its agencies negotiate many conventions, as does the Council of Europe.
Treaties and conventions require ratification, an executive act of final approval. In democratic
countries parliamentary approval is deemed advisable for important treaties. In the United States
the Senate must consent by a two-thirds vote. Elsewhere, legislative involvement is less drastic
but has increased since World War II. In Britain treaties lie on the table of the House of
Commons for 21 days before ratification; other countries have similar requirements. For bilateral
treaties ratifications are exchanged; otherwise, they are deposited in a place named in the text,
and the treaty takes effect when the specified number of ratifications has been received.
Agreements are usually bilateral, not multilateral. Less formal and permanent than treaties, they
deal with narrow, often technical topics. They are negotiated between governments or
government departments, though sometimes nongovernmental entities are involved, as banks are
in debt-rescheduling agreements. The United States has long used executive agreements to
preserve secrecy and circumvent the ratification process.

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A protocol prolongs, amends, supplements, or supersedes an existing instrument. It may contain

details pertaining to the application of an agreement, an optional arrangement extending an
obligatory convention, or a technical instrument as an annex to a general agreement. It may
substitute for an agreement or an exchange of notes, which can be used to record a bilateral
agreement or its modification.
International instruments have proliferated since World War II; between 1945 and 1965, there
were about 2,500 multilateral treaties, more than in the previous 350 years. As the countries of
the world have become more interdependent, this trend has continued. Most multilateral
agreements are negotiated by conferences. The negotiations are numerous and often protracted,
sometimes producing multivolume treaties.
(G) CONFERENCE DIPLOMACY

Professional diplomats are rarely dominant in conferences, where the primary role is usually
played by politicians or experts—especially at summits, the most spectacular type. Heads of state
or government or foreign ministers meet bilaterally or multilaterally. Summit diplomacy can be
risky, a point made in the 15th century by the Burgundian diplomat and chronicler Philippe de
Commynes, who wrote, ―Two great princes who wish to establish good personal relations should
never meet each other face to face, but ought to communicate through good and wise
emissaries.‖ Summits also raise expectations; if poorly prepared, they can be disastrous failures.
Haste can also lead to bad bargains or murky texts. On the other hand, the development of
personal relationships between leaders can be an asset, and political leaders can speed agreement
by setting guidelines or deadlines and cutting through bureaucratic thickets.
Summits put professional diplomats briefly into the shade but rarely hurt their standing unless
there is constant intervention in their work by political leaders or other officials. In the 1970s, for
example, the ―shuttle diplomacy‖ of U.S. Secretary of State Henry Kissinger in the Middle East
served to reduce the incentive of leaders in the region to do important business with regular U.S.
diplomatic representatives. Normally, the professionals resume their roles when the summit ends.
Indeed, a visit by the foreign minister can be an asset to an ambassador by serving to raise his
standing. A summit is often preceded or followed by coalition diplomacy. This necessary joint
working out of common policies or responses to proposals by cabinet ministers may be fairly
informal. Coalitions require cumbersome two-step diplomacy at each stage, arriving at a joint
policy and then negotiating with the other party.
Larger conferences are called, often under UN auspices, to address specific problems. The more
technical the topic, the larger the role played by specialists. The trend over the last two decades
of the 20th century was toward numerous conferences on social, economic, and technical issues.
Many conferences produce agreements that create international law, often in new areas. In some
cases the negotiations leading to these agreements are cumbersome. As the 20th century ended,

139
sharp differences of international opinion on various issues, ranging from global warming and
disarmament to the Arab-Israeli conflict, sometimes led to impasses at such conferences. Given
the American eagerness to promote multilateralism earlier in the century, it was ironic that,
whereas European and most Asian countries were convinced of the utility of multilateral
approaches to problem solving, the United States seemed increasingly disinclined to pursue
them.
International organizations play several roles in multilateral negotiations, including sponsoring

conferences and also encouraging coalition diplomacy. ASEAN (the Association of Southeast
Asian Nations), the Arab League, and the EU attempted to create a unified policy for their
members. Regular meetings of the UN, its agencies, and regional organizations provide forums
for parliamentary diplomacy, oratory, propaganda, and negotiation. International bureaucracies
negotiate with each other and with individual states. This is particularly true of the UN and the
EU, the latter of which has assumed some attributes of sovereignty. UN peacekeeping forces
have played an important role, and the secretary-general engages in third-party diplomacy to
bring feuding states to agreement or at least to keep them talking until the quarrel has faded.
States, specialized agencies, and regional entities also conduct third-party diplomacy.
(H) RIGHTS, PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS

The rights, privileges, and immunities of diplomatic envoys are based on the need to ensure the
efficient performance of the functions of diplomatic missions. The Preamble to the Vienna
Convention makes the clear.
As observed earlier, diplomatic envoys enjoy exemption from local, civil, and criminal
jurisdiction. Articles 34 to 36 of the Vienna Convention provide that a diplomatic agent shall be
exempt from all dues and taxes, except certain taxes. The receiving state shall exempt diplomatic
agents from personal services, from all public services of any kind whatsoever and from military
obligations connected with military contributions and billeting. It is also provided, in Article 26
that the receiving state shall ensure to all members of the Mission, freedom of movement and
travel in its territory, excepting in certain zones which are prohibited or regulated for reasons of
national security. Art. 27 provide that the receiving state shall permit and protect free
communication for all official purposes. The official correspondence of the Mission shall be
inviolable.
RIGHTS AND PRIVILEGES

All heads of mission receive the same privileges and immunities, many of which their aides also
enjoy. Diplomatic immunity began when prehistoric rulers first realized that their messengers to
others could not safely convey messages, gather intelligence, or negotiate unless the messengers
other rulers sent to them were treated with reciprocal hospitality and dignity. Thus, diplomatic
agents and their families are inviolable, not subject to arrest or worse, even in wartime. Their
homes are also inviolable, and they are largely outside the criminal and civil law in the host

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state—even as a witness—though many missions waive some exemptions, especially for parking
tickets. In the host state the foreign envoy is free of taxes and military obligations. His personal
baggage and household effects are not inspected by the host state or third states crossed in
transit, in which he also has immunity.
The physical property of the mission enjoys immunities and privileges as well. The flag and
emblem of the sending state may be displayed on the chancellery and on the residence and
vehicles of the head of mission. The mission's archives and official correspondence are
inviolable even if relations are severed or war is declared; it is entitled to secure communication
with its government and its other missions. The diplomatic bag and couriers are inviolable;
wireless facilities are either afforded or installed at the mission with the host state's consent. In
their host country diplomats enjoy the freedom to articulate their government's policies, even
when these are unwelcome to the ears of their hosts. Direct criticism of their host government, its
leading figures, or local society may, however, result in a diplomat's being asked to leave (i.e.,
being declared persona non grata). By long-standing tradition, in order to maintain an
atmosphere conducive to dialogue in its capital, host states generally seek to restrain the use of
intemperate or insulting language by one country's diplomatic representatives against another's
(the so-called ―third-country rule‖).
The head of mission's residence and the chancellery (usually now called the embassy) are extra-
territorial. The legal fiction is maintained that these premises are part of the sending state's
territory, not that of the host state; even local firefighters cannot enter ―foreign territory‖ without
consent. For this reason, political opponents of harsh regimes often seek asylum in embassies,
legations, and nunciatures. Although widely practiced, the right of political asylum is not
established in international law except in Latin America.
The ultimate security of embassies is universally acknowledged to be the responsibility of the

host state. Most states are scrupulous about treating foreign diplomats and their missions as
honored guests who are deserving of protection from intrusions into the premises in which they
live and work. Host countries are naturally concerned that reciprocal violations of privileges and
immunities might befall their own embassies in foreign lands were they to allow them in their
capital. There were, however, some spectacular lapses from the duty of diplomatic protection in
the last half of the 20th century in countries in revolutionary turmoil. For example, in 1963, with
the unapologetic sympathy of the Indonesian government, mobs sacked the British embassy in
Jakarta over the issue of Malaysian independence; in 1967, during the so-called Great Proletarian
Cultural Revolution in China, the British embassy in Beijing was invaded and gutted by Red
Guards, whose actions were officially condoned; and in 1979 Iranian students stormed the
American embassy in Tehran and, with the open connivance of the government of the newly
established Islamic Republic, held many of the staff in the U.S. embassy hostage for 444 days.

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IMMUNITIES OF DIPLOMATIC ENVOYS

Depending on the legal status of the individual involved, the way a person or some property is
treated varies. So you have to sort out the legal status of everybody involved — Ambassadors,
consular officials, their families, the various levels of staff, etc. Vienna Convention on
Diplomatic Relations — signed by pretty much everybody (173 out of 180).
Article I describes who is covered by this convention. Consular officials are not covered by this
one. If your problem concerns a consular official, there‘s another convention.
Article 29 — Inviolability of the person
1. The person of a diplomatic agent shall be inviolable.

2. He shall not be liable to any form of arrest or detention.
3. He cannot be arrested, not even detained the slightest bit, no matter what he does.
4. The receiving state shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom, or dignity.
Article 30 — Inviolability of the person‘s residence
1. The private residence of a diplomatic agent shall enjoy the same inviolability and
protection as the premises of the mission.
2. A diplomatic agent‘s correspondence is also inviolable.
3. His property is also inviolable, except in the case of:
 An action concerning private real estate in the territory of the receiving state.
 A lawsuit over a decedent‘s estate.
 An action relating to professional or commercial activity, outside his official
functions, performed in the receiving state.
4. The diplomatic compound is inviolable.
5. But if they don‘t pay their bills, you are entitled to shut off their gas, water, electricity,
etc. (Of course, people from some countries feel right at home in a humid D.C. summer
without air conditioning or water, so it may not be all that much of a deterrent.)
6. The land on which a diplomatic mission is located is not sovereign territory of the
sending state. It is territory of the state where it is located.
7. You are, however, outside the jurisdiction of the receiving state when you are on the
diplomatic compound. This is not necessarily a good thing. You might be inside the
compound of a foreign mission here in D.C. against your will, and there‘s nothing the
cops can do. It‘s good when you‘re being chased or need a safe haven for some other
reason.
Article 31 — Immunity from jurisdiction
1. A diplomatic agent is immune from the criminal jurisdiction of the receiving state. Even
if the act was not part of his official duties.
2. He is immune from civil and administrative jurisdiction, except in the case of:

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 An action concerning private real estate in the territory of the receiving state.
 A lawsuit over a decedent‘s estate.
 An action relating to professional or commercial activity, outside his official
functions, performed in the receiving state.
3. Even if one of these exceptions applies, you still cannot exercise your jurisdiction over
him if that involves infringing the inviolability of his person or residence.
4. A diplomatic agent is not obliged to give evidence as a witness.
5. The immunity of a diplomatic agent from the jurisdiction of the receiving state does not
exempt him from the jurisdiction of the sending state.
Article 32 — Waiver of immunity
The sending state can waive the immunity of a diplomatic agent, his family, staff, etc.
Article 37 — Family and Staff
1. The diplomatic agent‘s household family has the same privileges and immunities as the
agent himself (unless the individual is a national of the receiving state).
2. The administrative and technical staff (and their households) (but not nationals of the
receiving state) have the same immunities as the agent, except:
 The civil and administrative immunity only covers acts performed in the course of
their duties.
 The service staffs (but not nationals of the receiving state) have criminal/civil/
administrative immunity only for acts performed in the course of their duties.
3. Privately-employed servants and other private members of the mission who aren‘t
employed by the sending government only enjoy the privileges and immunities granted to
them by the receiving state.
Article 27 concerns the diplomatic bag. It can be as big as a truck. Simply goes through without
any problem.
Under Article 36, the personal baggage of a diplomat is also exempt, with a couple minor
exceptions.
Sent Home as Persona Non Grata: ―P.N.G.‖:
For someone enjoying full privileges and immunities, the worst that can happen to you is to be
―P.N.G.‖ — sent home as persona non grata. All you need to know is that consular officials are
only immune from jurisdiction when they were acting in their official capacity. States can agree
to grant greater immunity to consular officials if they want to.
A famous abuse of diplomatic immunities occurred when a British policewoman was killed by a
member of the Libyan consular staff in the mid-80s. A whole bunch of people were protesting
outside the Libyan embassy in London. The British police surrounded the embassy to protect it

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from the protestors. The Libyans decided to deal with the protestors the way they did back
home, and opened fire with machine guns. They missed the protestors, but shot a policewoman
in the head, killing her. The Libyans got away with it, scot-free, because of their diplomatic
immunity. All the British could do was declaring them PNG and kick them out of the country. In
order to invoke your immunity:
1. You have to request immunity, it isn‘t automatic.

2. You have to have been recognized as somebody entitled to it.
3. You have to be on the list of immunized people.
Arcaya v. Páez (S.D.N.Y. 1956) the consul general of Venezuela in New York was spending his
time publicizing the bad acts of a private Venezuelan citizen. If you came in the consular office,
you saw posters saying what a bad guy this citizen was. In South America, impugning
someone‘s honor is a really big deal, of constitutional import. So the private citizen sued the
consul general for libel.
He was only a consular official, and this was not part of his official duties, so he was not immune
from a suit for libel. While the trial was pending, the consular official was elevated to diplomatic
rank as the U.N. representative to the U.S. from Venezuela. This was intended to (and did) serve
to completely immunize him from the civil jurisdiction.
However, because the action had been begun while he was but a consular official, the moment he
would lose his diplomatic status, the case could be resumed. The State Department was
infuriated by this case, because this meant consular officials who got in trouble could get out of
trouble by being elevated to diplomatic status. So the State Department put its foot down and
said a country‘s mission can either be consular or diplomatic; they can‘t have both diplomatic
and consular offices in the same place. The basis is that diplomatic and consular officials have
incompatible roles. So you‘re either one or the other, and you can‘t just switch.
The State Department can permit shared functions if it wants to. Consular officials often get
diplomatic duties, so there is some overlap. But diplomatic officials are very jealous of their
important functions. But if the consular official is the only guy there, he‘s got to do it all.
What do the courts do here? Only the courts can decide what a person‘s legal status is for
immunity purposes. The courts jealously protect this power of theirs. Only the courts can decide
whether a person was acting within his authority or not. The courts jealously protect this power
of theirs.
(I) TERMINATION OF DIPLOMATIC MISSION

A diplomatic mission may come to an end for one of the following reasons:
(a) The state which accredited him may recall him. – The recall of an envoy may quite often
have serious implications. For example, it may be a prologue to severance of diplomatic

144
relations with the state to which the Envoy is accredited, or sometimes it may be intended to
warn the receiving state that the accrediting state is dissatisfied with their mutual
relationship.
(b) The receiving state may request that the Envoy be recalled. The implications of such a
request may be as serious and lead to the same consequences as in the case of recalling of an
Envoy.
(c) When a war breaks out between the accrediting and receiving states, passports may be
delivered to the Envoy and the staff and thus the diplomatic mission may come to an end. If
the diplomatic mission is for a particular object, after the fulfillment of the object of the
mission, it may be terminated.
(d) If the Letter of Credence is granted for a particular period, at the expiration of the
period, the mission may come to an end.
(e) If the sending state, by notification, informs that the function of a diplomatic agent has come
to an end.
(f) If the receiving state, by notification, declares that the individual has been a persona non
grata.
(J) CONSULS
The primary duty of the consuls is to protect the commercial interest of the state appointing
them. Generally, they are not diplomatic agents, but at the same time, apart from protecting the
commercial interest of their country, they perform a number of other duties, like granting of
passports, solemnizing of marriages, acting as notaries, etc. The system of appointing consuls is
much older than that of diplomatic representatives. Formerly, a merchant residing in a foreign
country would be appointed as a consul, but, during recent times, the practice of appointing
permanent consuls has developed.
It should be noted that consuls are different from diplomatic envoys. Generally, there will be
only one diplomatic envoy accredited to a state, while there can be any number of consuls
appointed in a state, depending on the nature of the commercial interest to be protected. For
example, there may be a consul in most of the important cities of a consul in most of the
important cities of a state to which they are sent. Again, consuls are not equipped with Letters of
Credence. They are appointed under a commission and appointment is notified to the state where
the consul is to be stationed. The state where he is to be stationed grants him a permit
(exequatur) to carry out the consul‘s functions. If the consul violates any law of the state where
he is stationed, or if he is guilty of any other misconduct, such permit may be withdrawn.
The Vienna Convention on Consular Relations signed at Vienna on April 24, 1963, enumerates
in detail the functions of the Consuls. As observed above, it has been recognized in the
Convention that the Consular functions consist mainly in furthering the development of
commercial, economic, cultural and scientific relations between the sending state and the
receiving state, and in protecting, in the receiving state, the interests of the sending state and of

145
its nationals, both individuals and bodies corporate, within the limits permitted by international
law. Art. 9 of the Convention classify Heads of Consular posts into the following:
(a) Consuls-General
(b) Consuls
(c) Vice-Consuls
(d) Consular Agents.
Art. 17 further provide that the Consular Office might perform diplomatic acts when the sending
state has no diplomatic mission and is not represented by a diplomatic mission of a third state.
Rights and privileges of consuls

Art. 31 of the Convention provide that the Consular premises shall enjoy certain amount of
inviolability. The Consular archive and documents shall be inviolable at all times, wherever they
may be (Art. 34). Subject to the interests of national security, the receiving state shall ensure
freedom of movement and travel in its territory to all members of the Consular posts (Art. 34).
The receiving state shall permit and protect freedom of communication on the part of the
Consular post for all official purposes. The official correspondence of the Consular post shall be
inviolable (Art. 35). The receiving state shall treat the Consular Officer with due respect and
shall take all appropriate steps to prevent any infringement of their personal freedom or dignity.
The other immunities enjoyed by the Consular Officers have already been discussed.
(K) AGENTS OTHER THAN DIPLOMATIC ENVOYS AND CONSULS

States may employ Agents like Trade Commissioner and Officer of Independent Information
Services or temporary representatives to negotiate on technical matters. No special rules of
international law have developed with respect to such agents. However, their rights and
privileges may be governed by treaty arrangements or on principles of courtesy.
Bibliography
 K.M. Panikkar, The Principles and Practice of Diplomacy (1952, reissued 1957);
 R.P. Barston, Modern Diplomacy, 2nd ed. (1997);
 Keith Hamilton and Richard Langhorne, the Practice of Diplomacy: Its Evolution,
Theory, and Administration (1995).
 Henry Kissinger, Diplomacy (1994), a critical history of modern statecraft with special
reference to the United States.

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CHAPTER 12
STATES RESPONSIBILITY
------------------------------------------------------------------------------------
(A) General Conception of Responsibility
(B) Scope of State Responsibility
(C) History of the Concept Of State Responsibility
(D) Codification Of The Law Of State Responsibility
(E) What Are The Responsibilities Of A State Under International Law?
(F) When Does A State Violate International Law?
(G) Towards Whom Is A State Responsible?
(H) Draft Articles
1. What is an internationally wrongful act?
2. What are the Defences available?
(A) GENERAL CONCEPTION OF RESPONSIBILITY
The law of state responsibility is the principles governing when and how a state is held
responsible for a breach of an international obligation. Rather than set forth any particular
obligations, the rules of state responsibility determine, in general, when an obligation has been
breached and the legal consequences of that violation. In this way they are "secondary" rules that
address basic issues of responsibility and remedies available for breach of "primary" or
substantive rules of international law, such as with respect to the use of armed force. Because of
this generality, the rules can be studied independently of the primary rules of obligation. The law
of state responsibility establishes:
(1) the conditions for an act to qualify as internationally wrongful,
(2) the circumstances under which actions of officials, private individuals and other entities
may be attributed to the state,
(3) general defenses to liability and
(4) The consequences of liability.
(B) SCOPE OF STATE RESPONSIBILITY
Until recently, the theory of the law of state responsibility was not well developed. The position
has now changed, with the adoption of the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in
August 2001.45 The Draft Articles are a combination of codification and progressive
45
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of
its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).

147
development. They have already been cited by the International Court of Justice46 and have
generally been well received. Although the articles are general in coverage, they do not
necessarily apply in all cases. Particular treaty regimes, such as the General Agreement on
Tariffs and Trade and the European Convention on Human Rights, have established their own
special rules of responsibility.
(C) HISTORY OF THE CONCEPT OF STATE RESPONSIBILITY
Traditionally, the term "state responsibility" referred only to state responsibility for injuries to
aliens. It included not only "secondary" issues such as attribution and remedies, but also the
primary rights and duties of states, for example the asserted international standard of treatment
and the right of diplomatic protection. Early efforts by the League of Nations and private bodies
to codify the rules of "state responsibility" reflected the traditional focus on responsibility for
injuries to aliens.47 The League's 1930 Codification Conference in The Hague was able to reach
an agreement only on "secondary" issues such as imputation, not on substantive rules regarding
the treatment of aliens and their property.
Attempts to codify and develop the rules of state responsibility have continued throughout the
life of the United Nations. It took nearly 45 years, more than thirty reports, and extensive work
by five Special Rapporteurs in order for the International Law Commission to reach agreement
on the final text of the Draft Articles as a whole, with commentaries. At the same time, the
customary international law of state responsibility concerning matters such as detention and
physical ill-treatment of aliens and their right to a fair trial has been rendered less important than
formerly by the development of international human rights law, which applies to all individuals,
whether aliens or nationals. The concept of a general regime of legal responsibility, which the
rules of state responsibility have taken on, is an inception of the civil law system and is largely
foreign to the common law tradition.
(D) CODIFICATION OF THE LAW OF STATE RESPONSIBILITY
The topic of state responsibility was one of the first 14 areas provisionally selected for the ILC's
attention in 1949.48 When the ILC listed the topic for codification in 1953, "state responsibility"
was distinguished from a separate topic on the "treatment of aliens", reflecting the growing view
that state responsibility encompasses the breach of an international obligation.49
The ILC's first special rapporteur on state responsibility, F. V. García Amador of Cuba,
appointed in 1955 noted, "It would be difficult to find a topic beset with greater confusion and
46
The ICJ cited an earlier draft text of the Articles in Gabčíkovo-Nagyamaros Project (Hungary/Slovakia), ICJ
Reports 1997, at 7.
47
See Y. Matsui, "The Transformation of the Law of State Responsibility" (1993) 20 Thesaurus Acroasium
48
Report to the General Assembly, 1949 Yearbook of the International Law Community 277, at 281.
49
1949 Year Book of the International Law Commission 46, 49-50, UN Doc. A/CN.4/SER.A/1949.

148
uncertainty."50 García Amador attempted to return to the traditional focus on responsibility for
injury to aliens but his work was essentially abandoned by the ILC when his membership ended
in 1961. His successor, Roberto Ago of Italy, reconceptualised the ILC's work in terms of the
distinction between primary and secondary rules, and also established the basic organisational
structure of what would become the Draft Articles. By focusing on general rules, stated at a high
level of abstraction, Ago created a politically safe space within which the ILC could work and
largely avoid the contentious debates of the day. From 1969 until his election to the ICJ in 1980,
Ago completed work on part 1 of the draft articles, addressing the origin of state responsibility.
Most of the thirty-five articles adopted during his tenure are reflected in the final draft. Work on
the remainder of the articles proceeded slowly throughout the 1980s and early 1990s. Willem
Riphagen of the Netherlands, who served as special rapporteur to 1986, stressed that particular
primary rules may specify the consequences of their breach - an idea conveyed by the articles
through the recognition of lex specialis. Gaetano Arangio-Ruiz, special rapporteur from 1988,
helped clarify the consequences of breaches of international obligations. Over the next eight
years, the ILC completed its first reading of parts 2 and 3.
In 1995, the United Nations General Assembly adopted a resolution in effect pressing the
Commission to make progress on the state responsibility articles and other long-pending
projects.51 James Crawford of Australia, appointed as special rapporteur in 1996, approached the
task pragmatically. The ILC moved rapidly through a second reading of the draft articles,
adopting what it could agree on and jettisoning the rest, most notable of which was Article 19 on
state crimes and the section on dispute settlement.
(E) WHAT ARE THE RESPONSIBILITIES OF A STATE UNDER

INTERNATIONAL LAW?
By looking at the world today, it becomes clear that a large number of states are repeatedly
violating their international obligations. Since there is no international police, states at times act
as if they are above the law. Under what legal principles can a state be held responsible for
breaching international law, and what are the consequences for failing to live up to its
responsibility?
The basic principle of ―state responsibility‖ in international law provides that any state who
violates its international obligations must be held accountable for its acts. More concretely, the
notion of state responsibility means that states, which do not respect their international duties, are
responsible to immediately stop their illegal actions, and make reparations to the injured. This is
a fundamental principle, which forms part of international customary law, and is binding upon all
states.
50
F. V. García Amador, First Report on International Responsibility 1956 2 Yearbook of the International Law
Commission 173 at 175, para. 6, UN Doc. A/CN.4/SER.A/1956/Add.1.
51
GA Res. 50/45, para. 3 (Dec. 11, 1995).

149
The rules on "state responsibility" do not specify the content of a state's obligations under
international law, for example that torture is forbidden, or that a state must provide medical
services to the civilian population. These obligations are specified in numerous international law
treaties and in international customary law. The rules on state responsibility merely identify
when a state can be held responsible for violating those obligations, and what are the
consequences if it fails to fulfil its responsibility.
(F) TOWARDS WHOM IS A STATE RESPONSIBLE?

States have legal responsibilities both towards states and individuals according to different
sources of international law.
For Whose Actions Is The State Responsible?
May a state be held responsible if its soldiers during wartime commit rape or other sexual
assaults even when they are off duty? When may a state be responsible for terrorist groups
operating from its territory? May a state be responsible for violations committed by private
security firms?
Not all acts of individuals engage the responsibility of a state. In order for a state to be held
responsible, the violation which has been committed must be attributable (connected) to that
state. In other words, the state must be answerable for the person who committed the violation. If
this criterion fails, only individual criminal responsibility is at stake.
• Acts of state organs

The acts of state organs - organizations or institutions belonging to the state - are clearly
attributable to the state no matter whether the organ exercises legislative, executive, judicial or
any other functions (parliament, police, court etc.).
• Acts of armed forces

The acts of the armed forces, and persons who accompany them, are directly linked to the state,
and therefore the state is responsible for their actions no matter whether they operate in the home
country or abroad.
• Acts of persons that have some government authority

Likewise, the acts of persons or entities exercising elements of governmental authority are
attributable to the state. This rule would, for example, cover private corporations, which are
authorised by the state to exercise certain public functions in prisons, checkpoints etc.
• Acting in private capacity?
In general, a violation is only attributable to the state if the organ or person, from the categories
above, acts in his or her formal public capacity. However, attribution can be made even if the
person or organ exceeds its authority or does not follow instructions.

150
According to international humanitarian law (IHL), a party to the conflict ―shall be responsible
for all acts by persons forming part of its armed forces‖ (article 3 Hague Regulation IV, article
91 IAP). This clearly indicates that the state is responsible also for private actions of armed
forces. In other words, during war time, members of the armed forces are always on duty and can
never act in private capacity. For example, sexual crimes of a certain gravity committed by a
soldier during leave will therefore result in a violation of his or her state's international
obligations (in parallel to individual criminal responsibility).
Does a State exercise control over private groups?

The conduct of a person, or group of persons, shall be considered an act of a state if she or he is
in fact acting on the instructions of, or under the direction or control of another state when
carrying out a violation. This is an important area of law when it comes to the actions of, for
example, terrorist groups, which many times are considered to be attached, through funding and
equipment, to states. The rationale behind the rules on control is to prevent states from
consciously avoiding responsibility by referring illegal tasks to individuals or other actors, which
are not officially working for the state.
The test of "control"
The key requirement for a state to be responsible for non-state actors is that it controls the person
or group who committed the violation. What acts or assistance by the state amount to ―control‖?
Is it enough to have overall general control over the group, or does the state have to have
effective control over each and every specific action done? There is no clear legal answer to this
question, and therefore it will has to be decided on a case by case basis whether the state is
responsible or not.
Due diligence to ensure that violations do not take place
States may also be held responsible for failing to take due diligence to ensure that violations do
not take place. To take due diligence means that the state has to take appropriate actions to
prevent violations, and to punish the perpetrators. If the state knew or ought to have known, that
there is a real risk that a violation will take place under its control, and did not prevent the
violation, it violates its international responsibility.
When there is close institutional relationship amounting to consent or turning a blind eye by the
state to acts of private persons, the state can also be held responsible. The principle of due
diligence is however applicable also when private actors acts independently from the state - a
state can be held responsible even if the identity of the perpetrators is not known to it.
Due diligence and IHL
The duty to take due diligence may be seen as falling under the obligation in Common article 1
of the Geneva Conventions to ―ensure respect‖ of the Conventions. For example, the occupying

151
power is responsible to act with vigilance, and take appropriate steps to prevent violations of
human rights, and IHL by other actors present in the occupied territory, including by rebel
groups or private military firms acting independently.
(G) WHEN DOES A STATE VIOLATE INTERNATIONAL LAW?

A state violates international law when it commits an ―internationally wrongful act", which
breaches an international obligation that the state was bound by at the time when the act took
place. A state is bound to act according to international treaties it signed.
International Law Commission‘s Draft Article on State Responsibility
One of the major legal instruments referred to in the context of state responsibility is the
International Law Commission‘s (ILC) Draft Articles on State Responsibility for Internationally
Wrongful Acts.
They answer the questions - when does a state violate international law, and what is its
responsibility if it does? After five decades of revision and negotiation, the Draft Articles were
finally adopted by the ILC in 2001, and later the same year, the UN General Assembly adopted a
resolution which ―commend(ed the articles) to the attention of Governments without prejudice to
the question of their future adoption or other appropriate action‖. Although they do not constitute
a legally binding convention that states must follow, many of the principles correspond to
existing international law.
The Draft Articles are followed by commentaries that provide a tool for their interpretation. The
International Law Commission is a body of independent legal experts, which operate under the
General Assembly.
Agreements must be respected
A State is bound to act in accordance with international customary law, and follow any
international treaty it has signed and ratified. This is a fundamental principle in international law
called ―pacta sunt servanda‖ - agreements must be respected - which follows both from the
Vienna Convention on the Law of Treaties, and international customary law. International
humanitarian law (IHL) conventions and human rights treaties are examples of sources for a
state‘s international obligations.
Exceptional cases - no state responsibility
There are a number of exceptions when an act that normally would be a violation of international
law, does not create responsibility of the state involved, such as cases of consent, self-defence or
necessity (ILC Draft, Articles 20-26).

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• Consent - Under certain sets of international law, it is possible for a state to consent to a
violation of international law. A state may allow another state to use its air space or waters,
and the invasion would not be considered an act of aggression.
• Necessity - If an act by a state (that may be considered illegal) was the only way for a state
to safeguard an essential interest against a grave and imminent danger (and it does not
damage another essential interest) - that state does not violate its international
responsibilities.
• Self-defence - A state cannot be held responsible if it acted in self-defence, as long as the
act follows the UN Charter's rules on when the use of force can be used in self-defense
(article 51 of the UN Charter).
(H) WHAT SHOULD A STATE DO IF IT VIOLATES INTERNATIONAL LAW?

If a state violates international law it is responsible to immediately cease the unlawful conduct,
and offer appropriate guarantees that it will not repeat the illegal actions in the future. The state
also has a responsibility to make full reparations for the injury caused, including both material
and moral damages. The rights to reparations are part of the right of victims to remedy for
violations of their rights. The above are fundamental principles of international customary law.
What is meant by reparations?
Reparations can take the form of restitution, compensation, rehabilitation or satisfaction.
• Restitution: To re-establish the situation which existed before the violation was committed,
as long as it is not materially impossible or involves a disproportional burden either by
returning the material or if this is not possible, by paying the value of it. Examples: releasing
persons who have been illegally detained, return property that was illegally seized.
• Compensation: Financial compensation for the damages caused (in addition to the value of
material that could not be restituted). It includes compensation for material damages that can
be valued in money, such as loss of income and treatment for physical harm; or non-material
damages, such as lost opportunities of education, as well as mental harm etc.
• Rehabilitation: As money can never undo psychological harm and trauma caused by
violations of international humanitarian law (IHL) and human rights, rehabilitation shall be
offered for the victims‘ healing process. Rehabilitation should include medical and
psychological care as well as legal and social services.
• Satisfaction: Acknowledgement of the breach, an expression of regret or a formal apology by
the violating state.
Who has the right to reparations?
Both individual victims and states can claim reparations from the responsible state. When two
parties to an armed conflict sign a peace agreement, the victims' right to reparations cannot be
negotiated away. It is a non-derogable, fundamental principle in international law that war
victims have the right to reparations.

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Where to enforce reparations?
The right of victims to reparations can be enforced either on the international or the national
levels.
• Individuals may claim damages in a national court of the violating state, international or
regional courts, or before a court of a third state in certain cases. For example, the United
States allow foreign nationals to sue any state before its national courts under the Alien Tort
Claims Act.
• Claims between two states can be brought to the International Court of Justice (ICJ) in The
Hague. The Court can also issue an advisory opinion that may recommend reparations be
provided by the violating state.
• States can also, through an agreement, set up their own arbitration tribunals.
• Reparations can also result from a UN Security Council resolution, which can establish an
obligatory reparation mechanism. For example, after the Iraqi invasion of Kuwait, a UN
Compensation Committee (UNCC) was established as a result of such a resolution, through
which Iraq paid damages to numerous of companies, states, and individual victims who
suffered damages in Kuwait.
• States may introduce their own reparations programs. For example, Argentina, after the
military dictatorship in the 1980's set up such programs, whereby mass number of
individuals received damages, without having to stand the same high threshold for evidence
as in a court. Agreements between states ended up in reparations programs such as the one
between Germany and Israel for violations of the Nazi regime in the Second World War.
• In states with a past of massive violations of human rights and IHL, Truth Commissions can
be a way to reconcile a divided country, and make reparations in form of satisfaction to the
victims. Truth Commissions are not judicial bodies, which deals with criminal punishment
but they allow the stories on violations to be told. Truth Commissions were, for example, set
up in South Africa after the Apartheid regime, in Sierra Leone after the internal war, and in
many South American countries after fallen dictatorships.
(I) STATE RESPONSIBILITY IN IHL AND HUMAN RIGHTS

The exceptions mentioned above are less relevant when it comes to human rights and
international humanitarian law (IHL).
• A state cannot give its consent to another state to commit violations of human rights or
IHL towards its citizens.
• A state cannot claim that there is a necessity to prevent civilians of benefits they are
entitled to in IHL, such as protection against targeted attacks.
• A state cannot claim self-defence to justify violations of IHL and human rights

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The state retroactively adopts the act
A violation which is not attributable to a state shall nevertheless be considered an act of that
State if the State acknowledges, and adopts the conduct in question as its own. A clear example
of this would be if the state publicly praise, and gives approval to a violation of IHL, committed
by a person or group, which did not initially act under state orders.
What Happens If IHL Is Violated?
There are different kinds of measures that can be taken if international humanitarian law (IHL) is
violated. Measures can be taken both against the state violating IHL, and, in parallel, against the
individual perpetrator.
General Principal of State responsibility
The basic principle of state responsibility in international law provides that any state who
violates its international obligations must be held accountable for its acts. More concretely, the
notion of state responsibility means that states, which do not respect their international duties, are
responsible to immediately stop their illegal actions, offer appropriate guarantees that it will not
repeat the illegal actions in the future, and make reparations to the injured. This is a fundamental
principle, which forms part of international customary law, and is binding upon all states.
The general principle of state responsibility does not only refer to what the violating state has to
do, but also includes rules on the responsibility of third states - the international community - not
assist a violating state and to react against its violations. The international community can react
to a state's violations of its IHL obligations by imposing sanctions in accordance with the UN
charter.
Individual Criminal Responsibility
Grave breaches of the four Geneva Conventions are called war crimes. War crimes incur
individual criminal responsibility, meaning that the individual violator can be held responsible in
parallel to the state.
All grave breaches of IHL should be included in each state party‘s national legislation. Persons
can therefore be tried for alleged violations in national courts. Grave breaches can be found in
article 50 IGC, 130 IIIGC, and 147 IVGC.
Jurisdiction
Jurisdiction refers to the power exercised by a state over persons, property or events through its
legal instruments. Jurisdiction is also the power of a court to hear and decide a case before it. In
international law, the term refers to the right of a state‘s national courts to exercise powers in
matters not exclusively under domestic concern.

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A state is entitled to use jurisdiction over persons and events within its territory, so-called
territorial jurisdiction. It can also be allowed to apply its jurisdiction to its own nationals
outside its territory, the so-called principle of active personality.
The principle of passive personality means that states have jurisdiction over act committed
against one of its nationals, even if the act occurred abroad.
Universal jurisdiction means that any national court has the right to hear cases of international
crimes, even if there are no links to its territory or its nationals. It does not matter if the
perpetrator allegedly committed the crime on foreign soil, or if he is not a national or resident of
the state that wishes to prosecute him. International crimes are such heinous crimes that they
threaten the international community as a whole. Examples of such crimes are piracy, theft of
nuclear materials, hostage taking, hijacking, as well as war crimes, crimes against humanity, and
genocide.
The Geneva Conventions give not only a right to states to exercise jurisdiction, but even puts an
obligation on its state parties to search for and punish persons guilty of war crimes and crimes
against humanity. An example is Article 146 of the Fourth Geneva Convention, which
establishes that each state ―shall bring such persons [who committed grave breaches of the
convention], regardless of their nationality, before its own courts‖. The state is also allowed to
extradite the suspect to any High Contracting Party willing to take him or her to court, or
surrender him or her to an international criminal court which has jurisdiction.
After World War II, the Nuremberg Tribunal was set up to try crimes against international law
committed by the Nazi regime. In London, August 1945, the Allies wrote the London
Agreement, which was the basis for the establishment of the military tribunal.
(J) DRAFT ARTICLES

The final text of the Draft Articles was adopted by the ILC in August 2001, bringing to
completion one of the Commission's longest running and most controversial studies. On 12
December 2001, the United Nations General Assembly adopted Resolution 56/83, which
"commended [the articles] to the attention of Governments without prejudice to the question of
their future adoption or other appropriate action."52 Crawford notes that the rules are "rigorously
general in character,"53 encompassing all types of international obligations.
1. What is an internationally wrongful act?

According to the Draft Articles, an internationally wrongful act must:
 be attributable to the state under international law; and
52
GA Res. 56/83, para. 3 (Dec. 12, 2001).
53
James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and
Commentaries (Cambridge University Press, 2002) at 12.

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 Constitute a breach of an international obligation of the state.54
(a) "Breach of an international obligation" is defined as "an act ... not in conformity with what
is required by that obligation."55 The obligation may derive from a treaty, from custom, or from a
general principle of law. Furthermore, the state cannot avoid responsibility by declaring
something legal under its own domestic law.56
Some older cases and commentaries discuss whether state responsibility is based on notions of
fault or strict liability. It may be said that states are more "strictly liable" for the actions of their
officials than for the actions of private individuals. In the latter case, it may be necessary to
prove some "failure to control" the private individuals (i.e. "fault") before the state itself is held
responsible. The articles leave it to the primary rules of obligation to determine whether the
wrongfulness of an act depends on fault, intention, lack of diligence, or the like.
(b) Attribution: Before a state can be held responsible for any action, it is necessary to prove a
causal connection between the injury and an official act or omission attributable to the state
alleged to be in breach of its obligations. This has become an increasingly significant
contemporary issue, as non-state actors such as Al Qaeda, multinational corporations, and non-
governmental organisations play greater international roles, and as governments privatize some
traditional functions.
The state is responsible for all actions of its officials and organs, even if the organ or official is
formally independent57 and even if the organ or official is acting ultra vires.58 Persons or entities
not classified as organs of the State may still be imputable, when they are otherwise empowered
to exercise elements of governmental authority, and act in that capacity in the particular instance.
Persons or entities not performing public functions may equally be imputable, if they in fact
acted under the direction or control of the State.59 Where there is a breakdown of normal
governmental authority and control, such as in so-called "failed states", the actions of those
acting as the "government" in a de facto sense will be acts of the state. 60 The acts of an
"insurrectional or other movement that becomes the new government of an existing state or
succeeds in establishing a new state" can also be attributed to the state. 61 This is also the case
where a state acknowledges and adopts the conduct of private persons as its own.62
54
Note 9, Article 2
55
Note 9, Article 12
56
Note 9, Article 3
57
Note 9, Art 5.
58
Note 9, Art 7.
59
Note 9, Art 8.
60
Note 9, Art 9
61
Note 9, Art 10 See further Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International
Law (Cambridge University Press, 2002
62
Note 9, Article 11.

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Despite their apparent concreteness, the standards stated in some rules involve important
ambiguities, and their application will often require significant fact-finding and judgment. Most
rules state responsibility involving private acts already arise under primary rules. For example,
environmental and human rights agreements require states to prevent abuses by private parties.
2. What are the Defences available?

If the general elements to establish state responsibility are established, the question arises as to
whether any defences may be available to the respondent state.
(a) Consequences of breach
The breach of an international obligation entails two types of legal consequences.
Firstly, it creates new obligations for the breaching state, principally, duties of cessation and non-
repetition (Article 30), and a duty to make full reparation (Article 31). Article 33(1) characterizes
these secondary obligations as being owed to other states or to the international community as a
whole. Articles indirectly acknowledge in a savings clause also that states may owe secondary
obligations to non-state actors such as individuals or international organisations.
Second, the articles create new rights for injured states, principally, the right to invoke
responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles 49-53).
These rights, however, are heavily state-centered and do not deal with how state responsibility is
to be implemented if the holder of the right is an individual or an organisation. The principal
element of progressive development in this area is Article 48, which provides that certain
violations of international obligations can affect the international community as a whole such
that state responsibility can be invoked by states on behalf of the larger community. This
provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some obligations
are owed erga omnes, toward the international community as a whole.63
(b) Reparations
If illegal actions are continuing, the state has a duty to cease. 64 The state also has duties to make
reparation, which could involve restitution, compensation, or satisfaction. Remedies will be
dependent on the particular forum, such as the United Nations, International Court of Justice,
World Trade Organisation, International Tribunal for the Law of the Sea, International Criminal
Court.
Bibliography for Further reading

1. Daniel Bodansky and John R. Crook, "Symposium: The ILC's State Responsibility
Articles" (2002) 96 American Journal of International Law 773.
2. The ILC's Draft Articles on State Responsibility
63
Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970 ICJ Reports 4, 32.
64
Note 1, Art 30

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CHAPTER 13
LAW OF TREATIES
(A) What is Treaty?

(B) Terminology and various descriptive designations
(C) Power to make Treaty/ agreement
(D) Process of Treaty Making.
(E) Reservation to Treaties
(F) Invalidity of Treaties, Termination, Modification and Suspension of the Operation of
Treaties
(G) Effects of Treaties
(H) Interpretation
(A) WHAT IS TREATY?
Article 2 (1) (a) of the Vienna Convention (1969) defines treaty as an international agreement
concluded between states in written from and governed by international law whatever its
designation. The constituent elements of treaty:
(a) International agreement,

(b) Concluded between states,
(c) Written Form,
(d) Govern by international law,
(e) Designation & number of instruments not a matter, and
(f) International agreement between states
(a) Treaties between two states.
Treaties / agreement between state & multinational company – Not a treaty, even if it says that it
shall be interpreted by reference to rules of international law.
(b) Written from:
It must be written. The text of the treaty may be in the form of–printed or
telegram, telex -fax or email.
(c) Governed by International law.
There must be an intention to create obligation under international law. The intention can be
gathered from the terms of the instrument& circumstances of its conclusion, AND Not from
what parties say afterword about their intention.

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(d) Whether embodied in a single instrument or in two or more related instruments.
The classic form of treaty instrument may be supplemented by leers formal document –
diplomatic notes. Letters- (Initiating notes & repay)
(e) Designation- Irrelevant
By designation or name – its legal effect is more important than the designation. Effect
determines the character. Important is whether negotiating states intend the instrument to be (or
not) legally binding which can be determine only after studying the text.
Vienna Convention on the Law of Treaties
An ―international agreement‖ is defined at the top of the Vienna Convention on the Law of
Treaties, which is universally accepted as the codification of the law of everything to do with
treaties. The United States hasn‘t signed it, because we have some problems with appendices to
the Convention, but we do obey it. The Vienna Convention on the Law of Treaties is gospel. It
is international law with regard to treaties. Covers anything that is it treaty:
 Parties must be states.

 Parties must have agreed.
 Agreement must be in writing.
 The parties must have intended it to be binding.
 The agreement must state that the governing law will be international law.
Definition of International Agreement
International agreements can lack some of these requirements, but that just means they aren‘t
―treaties.‖
 Parties must be states.
The U.N. is not a state. A contract between a corporation and a state is not an international
agreement. Companies/individuals cannot even make international agreements, much less
treaties. Preferable, then, to get an international agreement between your state and the state
you‘re dealing with, at the international legal level, setting the rules for the treatment of
companies and contracts. Absent that, your country has no obligation to come to your rescue
when the other country shafts you. And that country you‘re dealing with can shaft you big time,
and there‘s nothing you can do about it.
 Parties must have agreed.

 Agreement must be in writing.

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An agreement can exist without writing, but the Vienna Convention won‘t apply to it. Oral
agreements are difficult. How do you establish what actually happened? And did the words
used establish intent to be bound? Recall the discussion between the Danish and Norwegian
ministers that became a binding agreement, when the Norwegian minister‘s statement was
affirmative, dealt with an issue within his authority, and he informed his government what was
said.
 Parties must have intended it to be binding.
 The title of the document means nothing.
Mere hopes, plans, and desires mean nothing. You want the words ―the parties shall . . .‖ or ―the
parties agree‖
Nuclear Test Case (Australia & New Zealand v. France, I.C.J. 1974)
France was making above-ground atmospheric nuclear tests. Australia and New Zealand
protested furiously, and it went to the ICJ. The court never got to the legality of these evil cloud-
producing tests; however, because the French President made a unilateral statement that they
would cease above-ground atmospheric tests. Context is important. The assertion was made by
the head of state. The assertion was made while negotiations were going on. The assertion was
made to the international community. And everybody was clamoring for this result at the time.
In context like this, the statement was binding, even though there was no consideration, and even
though it was just a unilateral assertion.
Mali v. Burkina Faso
This case again — The Prime Minister‘s statement to a reporter from Mali about conceding a
border dispute did not create a binding legal obligation. It was not in the context of negotiations.
It was not announced to the world in the forum of a legal dispute. He was merely chatting to the
press. Statements are only binding when the state intends them to be binding. The agreement
must state that the governing law will be international law.
Are you engaged in ―discussions‖ or are they actually ―negotiations‖? In negotiations, you make
offers which, if accepted, become binding. n discussions, you‘re just spouting off ideas without
intending to be bound by them. Make sure you know WHY YOU ARE AT THE TABLE! And
if you‘re just there to discuss, don‘t slip into negotiation! Nonbinding international documents
may still have legal effect. You are estopped from claiming that you never intended X, when you
said you did intend it in a nonbinding document. Such as, State Department‘s memo, or a letter
to another government. Nonbinding documents may still be the building blocks of binding
obligations. Don‘t minimize the importance of these documents.
Some nonbinding documents have become binding international law, and others have achieved
great legal significance.

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(B) DIFFERENT FORMS AND TERMINOLOGY USED TO DESIGNATE THE

TREATY
(1) Charter: It is a treaty. UN Charter, Charter of commonwealth etc are treaties.
(2) Convention: This is the most proper formal instrument of a treaty of a multilateral character.
The instruments adopted by International organizations (ILO or ICAO) are also called
convention.
(3) Protocol: This is the form of agreement which is less formal than a treaty or convention. The
term covers following instruments:
i. An instrument- subsidiary to a convention drafted for ancillary matters such as the

interpretation of particular clauses, reservation by particular signatory.
ii. Ancillary Instrument- but independent character- Hague protocol of 1930 on Stateless,
signed at the same time as the Hague convention of 1930 on the Conflict of Nationality
laws.
iii. Supplementary Treaty- Concluded at a later date. Protocol of 1967 to the Refugee
Convention, 1951.
iv. It may be a record of certain understanding of, called as Process Verbal.
(4) Agreement- less formal than a treaty or Convention. It is not between the head of the states.
It is usually applied to a agreements of more limited scope and with few number of parties.
(5) Arrangement- It is usually applied for a transaction of a provisional or temporary nature.
(6) Statute-collection of constituent rules reading to the functioning of an international institution

for example, ICJ Statute, It may also be an accessory instrument to a convention setting out
certain regulations to be applied.
(7) Covenant: Initially the Word was used synonyms for treaty or convention.
(8) Declaration: Declaration is in face a treaty proper for example, the declaration of Paris, 1856.
It may also be an informal instrument appended to a treaty or Convention interpreting or
explaining the provision. Declaration may or may not subject to reification.
Capacity to Enter Into Treaties
The capacity for treaty-making is both an attribute of statehood, and a requirement for statehood.
Sub-entities of a state only have treaty-making power if the constitution of the state says so.

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Doctrine of Full Powers
In most negotiations, the presumption is that the guy at the table has the authority to speak for his
state. You can request a document to that effect, but there is no need if you‘re negotiating with a
head of state or the foreign minister.
Making a Treaty
Often what will happen is a document is drafted, redrafted, translated, and redrafted again. It
helps to know which text you‘re talking about. So what you do is ―adopt the text.‖ You initial
the document, or sign it ad referendum. This doesn‘t make it binding; it just means ―this is the
text we were talking about.‖ That‘s smart, because it makes it easier to go forward during the
negotiations.
Articles 9 & 10 of the Vienna Convention on the Law of Treaties — adoption of a text is not an
expression of intent to be bound. The agreement should definitely say when it goes into force;
how long it remains in force; and how it may be extended, amended and terminated. But, if you
neglect to include such language, the Convention fills in the blanks. Do it yourself, because the
default provisions may be contrary to the needs of your country.
Accession (Article 15).
Accession is the acceptance by one nation of a treaty already concluded between other states.
The third nation can formally enter into the treaty, becoming a party to it. (The consent of the
original parties is required.) The consent of a state to be bound by a treaty is expressed by
accession when:
(a) The treaty provides that such consent may be expressed by that state by means of
accession;
(b) It is otherwise established that the negotiating states were agreed that such consent may
be expressed by that state by means of accession; or
(c) All the parties have subsequently agreed that such consent may be expressed by that state
by means of accession.
(d) While awaiting signature, you cannot do things that are contrary to the object of the
agreement, unless you REPUDIATE the agreement.
(e) Unless you repudiate the agreement, while you‘re waiting for signature you comply with
the agreement as if it was signed.
Reservations
A reservation is a unilateral statement by a state, excluding or varying the legal effect of certain
provisions of the treaty as they are applied to that state. The U.S. Senate loves to make
reservations to treaties. (We agree so long as this clause doesn‘t mean we have to . . .) We have

163
made reservations, for example, in human rights treaties; because our Bill of Rights permits free
speech (treaties forbid hate speech). And also because we still want the death penalty.
Some treaties expressly forbid reservations. (The Law of the Sea Convention is an example.)
Reservations are then impermissible. You can‘t make them. Unless the agreement forbids
reservations, they are permissible. Reservations are always impermissible if they go to the very
heart of the agreement.
Some reservations are permissible, but would be objectionable to the other signatory states.
Reservations have the effect of turning one agreement into many different agreements.
(a) They must be in writing.

(b) They must be communicated to the other parties.
(c) They are only binding on the other parties if the other parties accept the reservation.
(d) Acceptance will happen by default if they don‘t reply within 12 months.
Suppose there is a treaty signed by countries A, B, C, and D. A makes a reservation on one part
of it, say Article III. B is okay with it. Fine, there is a treaty between A & B, including the
reservation. C opposes the reservation. There is no agreement between A & C as to Article III.
There‘s only a partial agreement. D says the reservation is intolerable, and that A is not a party as
far as D is concerned. There is no agreement at all between A & D.
Between B, C, and D, there is an agreement. Because of the hodgepodge this creates, the trend
has been to forbid reservations in multilateral agreements.
It ought to have a dispute-settlement clause as well. It is always best to negotiate out any
problems between the parties, rather than going to a third-party arbitrator. (Sometimes, however,
an arbitrator is preferable.)
Observance of Agreements
International law is not an excuse for the non-observance of an agreement. Even if by doing so
you would violate your own laws or international law, you still have to comply with agreements
or be held liable for the result of your noncompliance.
Interpretation of Agreements
(a) Use the ordinary meaning of words, in light of the context and purpose of the agreement.
Article 31.
(b) Take context not only from the surrounding text, but also from actions and failures to act
after the agreement was made.
(c) Failure to object to potential breaches makes them okay.
(d) If you want the agreement to be interpreted a certain way, either get in there are enforce it, or
make your objections known.

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(e) Preparatory documents and discussions can be used to help interpret an agreement, but only
when the Article 31 rule doesn‘t give you any useful interpretation.
(f) Stick to the agreement itself first (text and context).
(g) Only if it remains ambiguous do you go to other sources.
(h) With pluri-lingual texts, you have to go through the same steps. Jesse Law’s Case (United
States vs. Great Britain, Special Arbitration 1921)
Neither party individually interprets treaties. Nor is it up to the courts of either party to interpret
treaties. Both parties must make an interpretation, for it to be authentic and binding.
Amendments and Modifications

Always write in your agreements that amendment and modifications must be in writing.
Otherwise, you‘ll have a nightmare to deal with when it gets amended orally. Also, make the
original parties do it.
Invalidity of Treaties
Articles 46 - 53 list things that can invalidate a treaty. None of these automatically invalidate it;
they simply give the other side cause to invalidate it.
(a) Ultra Vires treaties

You can‘t excuse nonperformance just because entering the treaty was in violation of your
internal laws (your internal laws did not give you authority to enter into the treaty), unless the
violation was manifest to any other state. (This has never happened.)
―Ultra vires‖ means an act beyond your authority. A violation would be manifest if it would be
objectively evident to any state conducting itself in the matter in accordance with normal practice
and in good faith.
(b) Specific Restrictions on Authority to Express the Consent of a State

If the negotiator‘s authority to sign it has been limited by a specific restriction, his failure to
observe that restriction may not be invoked as invalidating the consent expressed by him. The
exception is when the restriction was notified to the other negotiating states prior to his
expressing his consent.
(c) Error
Error invalidates a treaty if the error relates to a fact or situation which was presumed to exist as
of the time the treaty was concluded, and if the presumption formed an essential basis of the
state‘s consent to the treaty. Error is not an excuse if you contributed to the error, or you should
have known of it. An error relating only to the wording of the text doesn‘t invalidate the treaty.
Instead you go to Article 79 (Correcting errors).

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(d) Fraud
If you were induced to conclude a treaty by the fraudulent conduct of another negotiating state,
then you may invoke the fraud to invalidate the treaty. Bible is full of international agreements,
and frauds. The Israelis amazingly admitted to being duped in Joshua. The Israeli army was
conquering and liquidating the whole region, and anybody on the territory was fair game so far
as they were concerned. Joshua was not making any treaties with neighbors. The Gibeonites
lived on the other side of the hill, and didn‘t want to be crushed. So they got together a
negotiating team and made them look like they‘d made a long journey — dressed in old ragged
clothes, carried moldy food. They met up with Joshua and claimed they were from far away, and
wanted a peace treaty. Joshua made a peace treaty, and three days later came upon the
Gibeonites, and he couldn‘t conquer them because of his treaty. Joshua needed a good lawyer.
He had God as a lawyer, not bad, but he didn‘t consult him.
(e) Corruption
If your consent was procured through the corruption of your representative, directly or indirectly,
by another negotiating state, then you can invoke that corruption to invalidate the treaty.
(f) Coercion — Automatically Void

If your consent was procured by the coercion of your representative through acts or threats
directed against you, then the treaty is invalid. If your consent was procured by the threat or use
of force in violation of the principles of international law embodied in the U.N. Charter, then the
treaty is void.
(g) Conflicts with a Preemptory Norm of International Law

A treaty is void if it conflicts with a pre-empting norm of general international law.
(h) Breach
The breach has to be material. It depends on the object/purpose of the agreement. You can‘t just
automatically renounce an agreement because the other side breached. Breach only gives you
grounds to revoke. And you may only be able to revoke part of the treaty.
(i) Radical Change of Circumstances

Termination of a treaty is okay if the circumstances have fundamentally changed. Article 62
spells out the narrow circumstances where this is okay: The change has to be material,
unforeseen, and has to radically change the performance of the agreement.

166
CHAPTER 14
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

------------------------------------------------------------------------------------
(A) Introduction
(B) The obligation to Settle disputes by Peaceful Means
(C) Non-Adjudicatory Procedures
(D) The International Arbitration
(E) Specialized International Tribunals
(F) Conditions
(G) Methods of settlement
a. Negotiation
b. Mediation
c. Conciliation
d. Commissions of inquiry
e. Arbitration
f. The Permanent Court of Arbitration
(H) The applicable law
(I) Enforcement of awards
(J) Arbitrations since 1945
(K) Arbitration and adjudication can now be compared
(L) The standing Court known as the International Court of Justice
(M) Concluding observations
(A) INTRODUCTION
This chapter provide a general survey of the practices among States of the peaceful settlement of
international disputes. There are variety of instruments for peaceful settlement, including
negotiation, conciliation and commissions of inquiry. However, the most significant instruments
are international arbitration and settlement of disputes through judicial institutions including the
International Court of Justice. The settlement of dispute through peaceful means is the most
important aspect of international relationship and logically correct mechanism to comply the
spirit of the principles of peaceful co-existence as it is the basic object of international law.
International law provides the definition of the political and territorial limits and the jurisdiction
of States, and also their immunities from jurisdiction. International law also provides the basis of
the civil responsibility of States for breaches of international law, together with the appropriate
remedies. And lastly international law provides the principles and modalities governing the
peaceful settlement of disputes between States: (a) Negotiation, (b) Good offices, (c) Mediation,
(d) Conciliation,(e) Enquiry, (f) Arbitration, (g) Judicial settlement, (h) Settlement under the
auspices of the United Nations Organization. If these modalities fails then the state are resorting

167
the forcible means of settlement of disputes. The principal forcible modes of settlement: (a)
Retorsion, (b) Reprisals, (c) Pacific Blockade, (d) Intervention and (e) War. Thus the importance
of peaceful means is that, if they failed to settle the disputes, then war or similar kind of situation
arises.
(B) CONDITIONS OF PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTE
Meaning of Settlement of Disputes

A dispute can be defined as a disagreement on a point of law or fact, a conflict of legal views or
of interests between two States. Disputes relate to an alleged breach of one or more legal duties.
They may also relate to a question of attribution of title to territory, to maritime zones, to
movables or to parts of the cultural heritage of a State.
Peaceful settlement is a phrase which covers a considerable variety of processes and outcomes.
Some of following cases can be called as peaceful settlement:
a) settlement according to law resulting from judicial decision or arbitration;
b) settlement involving negotiations between States and political compromise;
c) pre-ordained settlements, such as the reversion of Hong Kong to China, in accordance
with the Joint Declaration on the Question of Hong Kong agreed in 1984;65
d) Multilateral settlements implemented with the lawful authority of the international
community, including the Peace Treaties with Italy66 and Japan67 after Second World
War.
Existence of dispute
The peaceful settlement must also be in accordance with standard process usually followed in
legal system. It should be based upon the genuine consent of the parties to the dispute and
involves the application of law, and in the case of purely factual issues, the application of judicial
standards of the assessment of evidence. It is also the condition that the dispute must be in
existence and it should not be moot as such. In the well-known Nuclear Tests Cases68 in 1974,
the International Court held that the issue raised by Australia and New Zealand was moot as a
consequence of French undertakings not to continue the nuclear tests. In the words of the Court:
The Court, as a court of law, is called upon to resolve existing disputes between States. Thus the
existence of a dispute is the primary condition for the Court to exercise its judicial function; it is
not sufficient for one party to assert that there is a dispute, since ―whether there exists an
international dispute is a matter for objective determination‖ by the Court (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion, ICJ.
Reports 1950, p. 74). The dispute brought before it must therefore continue to exist at the time
65
23 ILM, 1366.
66
49 UNTS, 3 (signed 10 February 1947).
67
136 UNTS, 45 (signed 8 September 1951).
68
Australia v. France, ICJ Reports, 1974, 270–271, para 55.

168
when the Court makes its decision. It must not fail to take cognizance of a situation in which the
dispute has disappeared because the object of the claim has been achieved by other means. If the
declarations of France concerning the effective cessation of the nuclear tests have the
significance described by the Court, which is to say if they have caused the dispute to disappear,
all the necessary consequences must be drawn from this finding.
Kinds of Disputes
There are different kinds of disputes likely to come for settlement and at any stage. The
territorial and boundary disputes are sensitive questions of social geography and traditional
regional division are of relatively special important among the disputes generally resolved. They
generate problems of public order and public debate, the process of peaceful settlement may take
place only a year or two following an armed conflict related to the very same issues which gave
rise to the armed conflict. For example, the case of Rann of Kutch arbitration,69 the Eritrea–
Ethiopia Boundary Commission Case70 and the Cameroon v. Nigeria case71 before the
International Court of Justice. It is also to be noted that the areas involved in a boundary dispute
may include populations whose regional and historical ties may be threatened with disturbance
as a direct result of the determination of a land boundary. In the aftermath of the Cameroon v.
Nigeria case, the problems of implementation were the subject of an Agreement concerning the
modalities of withdrawal and transfer of authority in the Bakassi Peninsula prepared by a
Cameroon–Nigeria Mixed Commission. The International Court decided the case in 2002 and
accordingly the Agreement on implementation was concluded in 2006.
What Are The Methods Of Settlement?

There are varieties of methods of peaceful settlement, apart from judicial settlement. Following
are the standard peaceful modes of settlement of disputes: Negotiation, Mediation, Conciliation,
Commissions of Inquiry, Arbitration and Judicial Settlement. Now each can be described in the
following section.
(C) NEGOTIATION
This is the first and most classical mode of settlement of disputes. Hersch Lauterpacht defines
negotiation as : International negotiation is the term for such intercourse between two or more
states as is initiated and directed for the purpose of effecting an understanding between them or
settling a dispute.72 According to him, full-fledged sovereign states alone can be regular parties
to international negotiation.This involves a direct and bilateral process. Negotiation can produce
a settlement in accordance with legal criteria or in accordance with both legal and political
criteria. In any case, negotiation is politically more flexible than adjudication.
69
50 ILR, 2
70
130 ILR, 1.
71
ICJ Reports, 2002, 303.
72
Hersch Lauterpacht, Oppenheim's International Law (Vol. II, 7th edn, 1952), 12.

169
A recent example of a negotiated settlement related to the NATO bombing campaign against
Yugoslavia in 1999. On 7 May 1999, NATO aircraft bombed the Chinese Embassy in Belgrade,
killing three Chinese nationals and wounding approximately 20 others. American officials
described the episode as ―a tragic mistake‖. On 30 July 1999, the United States agreed to pay
China the sum of $ 4.5 million dollars for the families of those killed or injured. The
Memorandum of Understanding73 provided in part: The two sides have reached a consensus on
the payment relating to deaths, injuries or losses suffered by the personnel of the Chinese side.
The U.S. Government will pay to the Chinese Government the sum of U.S. $4,500,000 in a
single payment as promptly as possible consistent with U.S. legal requirements, for direct
distribution by the latter to the bereaved families and those suffering injuries or losses. The
Chinese Government, upon receipt of the amount mentioned above, will distribute, as soon as
possible, all the funds among the bereaved families and those suffering injuries or losses, and
provide the U.S. Government with relevant information and receipts confirming the distribution.
The agreed amount, when fully paid as agreed, will constitute a full and final settlement of any
and all claims for deaths, injuries or losses suffered by the personnel of the Chinese side caused
by the U.S. bombing of the Chinese Embassy in the Federal Republic of Yugoslavia. In the
second agreement, China agreed to pay US$ 2.87 million for damage to US diplomatic and
consular properties in China caused by the Chinese demonstrations.
Negotiation has a role in the less dramatic context of maritime delimitation. The example is an
Agreement between the PRC and Vietnam signed on 25 December 2000 on delimitation in the
Beibu Gulf.74 The first paragraph of the Agreement provides that the Parties have determined the
demarcation line for the territorial seas, exclusive economic zones and continental shelves of the
two countries in the Beibu Gulf in accordance with the 1982 United Nations Convention on the
Law of the Sea, generally accepted principles of international law and international practice,
based on the full consideration of all relevant circumstances of the Beibu Gulf and on the
equitable principle, and through friendly consultation.
(D) MEDIATION
The mediation is another type of procedure of settlement of dispute. It is modes of third-party

settlement. In principle, mediation involves the direct conduct of negotiations on the basis of
proposals made by the mediator. In mediation and good offices-both these methods of
settlement, usually a friendly third state assists in bringing about an amicable solution of the
dispute. The main difference between good offices and mediation is that in the case of good
offices, the third party assist to bring about the solution of a dispute between two states by
counselling of advice or suggesting of a settlement without participating in the negotiation. In the
case of mediation, the third party, both at its own initiative or at the request of the disputing
parties, plays an active role and participates in the negotiations. Such mediating party or the
73
Murphy (ed.), United States Practice in International Law, 1999–2001 (2002), 101.
74
Ibid., 99–102.

170
party which tenders good offices may be a state or an International Organ or even an individual.
There are no definite rules of procedure of international law regarding the conduct of either good
offices or mediation.
The mediation is normally distinguished from conciliation. Mediation is commonly provided for
in various multilateral treaties for the peaceful settlement of disputes. The United Nations and, in
particular, the Secretary-General, have often either recommended or performed mediation or
good offices, for example in Cyprus from 1984 onwards.75
Modern practice contains many examples of an effective mediation as a method of settlement.

Papal Mediation in the years 1978 to 1984 between Chile and Argentina is one of the good
examples of mediation. The two States formally accepted the mediation of the Holy See in the
Agreement signed on 8 January 1978. The mediation lasted five years and resulted in a definitive
Treaty of Peace and Friendship signed on 29 November 1984.76 The mediation of the Soviet
Union between India and Pakistan over the Rann of Kutch in 1966 77 and the mediation of
Algeria between Iran and the United States concerning the Hostage Crisis in 1980–198178 are
good examples of mediation.
(E) CONCILIATION
Conciliation is another of third-party settlement which is similar in purpose to mediation but
different in working style. The emphasis is usually on fact-finding, and conciliation is believed to
be more structured than mediation. The term conciliation is used in two senses. In the general
sense, it means the great variety of methods whereby a dispute is amicably settled with the aid of
other states or of in partial conciliation means the reference of a dispute to a Commission or
Committee to make a report, with proposals to the parties for settlement. It must be noted that
such proposals contained in the report are not of a binding character. Hudson defines conciliation
as a process of formulating proposals of settlement after an investigation of the facts and an
effect to reconcile opposing contentions, the parties to the dispute being left free to accept or
reject the proposals formulated.79 Hersch Lauterpacht defined the conciliation as the process of
settling a dispute by referring it to a commission of persons whose task it is to elucidate the facts
and usually after hearing the parties and endeavouring to bring them to an agreement to make a
report containing proposals for a settlement, which is not binding.80
The Hague Convention of 1899 and 1907 provided for the pacific settlement of disputes by
means of Conciliation Commissions. These Commissions were set up by the special agreement
75
Handbook on the Peaceful Settlement of Disputes between States, United Nations (1992), 37.
76
24 ILM, 11. 7.
77
Schweisow, in: Luard (ed.), The International Regulation of Frontier Disputes (London, 1970), 160–162.
78
Iran–U.S. Claims Tribunal Reports, Vol. 1, 1981–82 (Cambridge, 1983), 3–36.
79
Hudson, International Adjudication
80
Hersch Lauterpacht, Oppenheim's International Law (Vol. II, 7th edn, 1952), 12.

171
of the parties which, after investigation of the disputes, made their report, indicating the way to
settle the dispute amicably. Though the value of the conciliation commission is doubted by
many, it must be accepted that the procedure of conciliation proved most useful and important
when the League of Nations Council employed it to settle international disputes. Conciliation
differs from mediation. In mediation, the agency of a third party is used to carry on the
negotiations, while in the case of conciliation such third party ascertains the facts and makes a
report suggesting proposals for settling international disputers Conciliation also differs from
arbitration. In the case of conciliation, the parties to a dispute are free to disregard the proposals
made by the conciliation, while in the case of arbitration, the decision of the Arbitrator is given
in the form of an award, and is binding on the parties.
However, there have been a small number of conciliation procedures in recent times, and the
procedure tends to emerge as less attractive than arbitration. In 1995, the Special Committee on
the Charter of the United Nations proposed a revised version of the Model Rules for the
Conciliation of Disputes between States, and this was approved by the Sixth Committee.
(F) COMMISSIONS OF INQUIRY

Commission of Inquiry is a one of the device which has proved useful means of settlement on
some occasions. Its specific purpose is to elucidate the facts behind a dispute in order to facilitate
a settlement. In Inquiry facts are investigated and a way for a negotiated adjustment is prepared.
An enquiry differs from conciliation in that the object of an enquiry is not to make any specific
proposals for settling international disputes, but it is just to investigate and establish facts. It does
not involve the application of rules of law. The purpose of the Commissions of Inquiry is
provisional and political. The device is linked to the idea that the resort to an inquiry provides a
cooling off period and reduces the risk of counter-measures or breaches of the peace. Moreover,
the Report of the Commission of Inquiry with respect to the fact facilitates the settlement of the
dispute in future.
This system originated in the Hague Conventions of 1899 and 1907. The Hague Conference of
1899 suggested the establishment of International Commission of Enquiry for international
disputes, involving neither them nor vital interests and relating to points of facts. The Conference
further provided that such a Commission might be constituted by special agreements between the
parties. The Conference also laid down a scheme for selection of members of such Commission.
The North Sea Incident Enquiry and the Ubangi Enquiry are instances of such commissions of
Enquiry. However, it must be noted that the International Commissions of Enquiry have not been
employed in practice as much as it was expected they would be. Recent examples of
Commissions of Inquiry concerned the Red Crusader incident between Denmark and the United
Kingdom (1962),81 and the Letelier and Moffitt case between Chile and the United States
81
21 35 ILR, 485

172
(1992).82 It is to be noted that in both the cases, the role of the Commission here was not
confined to findings of fact but it was essentially judicial, which is an exceptional.
(G) ARBITRATION
Arbitration is a very important method of settling international disputes by peaceful means. Its
value rests in its quasi-judicial character. It signifies the reference of the dispute to an individual
or small group of individuals to whom the parties refers their respective cases and whose
decision they are bound to obey, unless they can show that the arbitrator exceeded his authority.
The procedure of international arbitration is the same as in municipal law. But it is possible that
several disputes involving purely legal issues are referred to Arbitrators for settlement on a legal
basis. Several treaties which provide for settlement of a dispute arising out of a treaty, state that
the Arbitrator may make his award according to justice or equity or ex acquit et bono, or he
might be specially directed to apply the rules of International Law.
Growth of Arbitration in International Law

Though arbitration as an instrument of settling international disputes is of great antiquity it has
come into vogue in its modern form only during the last two centuries. The modern practice of
arbitration appears in the Jay Treaty of 1794, between the United States and Britain. In this
treaty, three commissions were provided for settling certain outstanding disputes between the
two states. The success of these commissions gave new life to the Institution of Arbitration.
Within three decades after this arbitration, almost a hundred cases were settled successfully by
Arbitration. Besides, arbitration was adopted by many treaties, and particularly law-making
Conventions. In the latter cases, the Institution of Arbitration interpreted the law-making
convention, and thus become instrumental in developing International Law. In the words of
Hudson, ―arbitration thus becomes the handmaiden of international legislation‖. Further
stimulation was gained by the Institution of Arbitration after the Alabama Claims Award of
1872. The institution gained a political profile in Anglo-American practice of the late nineteenth
century. The spectacular case was the Alabama Claims Award of 1872,83 by which the United
Kingdom was ordered to pay compensation to the United States of 15.5 million dollars for her
acts of intervention on the side of the Confederate forces in the Civil War. The Tribunal
consisted of an uneven number of members with the power to decide by majority vote. The
Tribunal adopted a judicial procedure and produced a reasoned Award. Other nineteenth-century
arbitrations included the Behring Sea arbitration (1893),84 and the British Guiana arbitration
(1897).85
82
88 ILR, 727.
83
Colson and Smith (eds), International Maritime Boundaries (Vol. V, 2005), 3745.
84
Moore, Arbitrations, I at p 755
85
92 British and Foreign State Papers, 970

173
It was in 1899 when the Hague Conference codified the law as to arbitration and laid the
foundation of the Permanent Court of Arbitration that was another important step in the history
of Arbitration Hague Conference of 1907 completed the work of the 1899 Conference and
established the Permanent Court of Arbitration.
The Permanent Court of Arbitration

The establishment of the Permanent Court of Arbitration in 1899 is an important institution in
the history of arbitration. This is an institution with premises and staff based in the Peace Palace
in The Hague. The institution includes a panel of arbitrators nominated by the contracting States
of the Hague Convention. In the words of Starke, the Permanent Court of Arbitration is an
Institution of a peculiar character. It is neither ‗permanent‘; nor is it a ‗Court‘. ―The members of
the ‗Court‘ are appointed by the states which are parties to one or both of the Conventions
adopted by the Hague Conferences‖. A panel of competent lawyers is prepared out of the four
persons suggested by each state. It is out of this panel that arbitrators are chosen by the states
which are parties to a dispute. These arbitrators then choose an umpire who is the presiding
member of the arbitral tribunal. The award is given by a majority vote. It should be noted that the
Permanent Court of Arbitration has no existence as such, but each tribunal is created by an
arbitration agreement or a compromise.
In the years up to 1931, 20 cases of arbitration were heard under the auspices of the Permanent
Court. The most important awards by the tribunals created under this scheme are the North
Atlantic Coast Fisheries Case of 1910 and Savarkar’s Case of 1911.
In spite of the some defects in the scheme of the court, it has played a significant role, both in
settling international disputes and in the development of International Law. In the recent past, the
apparatus of the Permanent Court has played a useful role in providing a Registrar and
accommodation for several inter-State arbitrations. The one great advantage of arbitration as a
means of settlement of international disputes is that the absence of recognized rules of
International Law will not prevent the arbitrator from giving his award. This is of very great
advantage at the present state of International Law, which is yet far from full developed. Another
advantage of the method of arbitration is that it does not decline to resolve a dispute when it is
purely of a political character.
Applicable law
In the nineteenth century practice, the arbitration Tribunals was mandated to apply ―law and
equity‖ and Awards were produced without reasons. In the twentieth century, the modalities of
arbitration were essentially the same as adjudication, and the modalities involved the application
of legal principles and the adoption of a fully reasoned Award. The essential character of
arbitration is that it is ad hoc, private and expensive. In principle, it is free from preliminary
objections, but there may be issues relating to the scope of the dispute.

174
Enforcement of awards
Arbitral Awards are binding, and provision for appeal is relatively rare. However, proceedings
for annulment are possible, for example, in case of an excess of jurisdiction. Some arbitration
agreements permit further proceedings in the event of a dispute concerning the implementation
and interpretation of an Award.
Comparison between Arbitration and adjudication

The points of comparison between Arbitration and adjudication can mentions as follows:
(a) The control over procedure exercised by the parties is much greater in the case of
arbitration. The flexibility of arbitration is beneficial however too much control by the
parties may also lead to substantial delay.
(b) Arbitration is litigation in conditions of privacy: no third-party intervention is possible.
This absence of the possibility of intervention gives arbitration an advantage over the
International Court, in which third-party intervention is allowed under certain conditions.
(c) The International Court has the advantage that the Court and Registry are available
without cost.
(d) Arbitration usually produces no jurisdictional problems.
(e) Enforcement problems tend to be less acute in the case of the International Court—but
both systems have enforcement problems.
(f) Arbitration is relatively expeditious, but a number of arbitrations concerned with
territorial disputes and maritime delimitation have taken as long as proceedings in the
International Court.
Arbitrations since 1945

Since 1945, the incidence of arbitration has been fairly high and it is important to keep in mind
that some arbitration awards are as important as many of the cases before the International Court
of Justice. Arbitrations fall into two categories, those under clauses in standing treaties and those
under ad hoc agreements to arbitrate.
The first category of arbitrations occurred under standing treaty clauses:

1. Air Transport Services Agreement Arbitration (United States v. France), Award 1963 and
Interpretative Decision 1964.86
2. Italy–United States Air Transport Arbitration, Award (Advisory Opinion), 1965.87
3. Argentina–Chile Frontier (Palena) Case, 1966.88
4. Beagle Channel Arbitration, Award and Decision, 18 February 1977 (Chile and Argentina).89
This Beagle Channel Arbitration represents an interesting example of compulsory
86
38 ILR, 182.
87
45 ILR, 393. See Permanent Court of Arbitration, www.pca-cpa.org/showpage.asp?pag_id=1029), Past Cases
(Partial List).
88
38 ILR, 10
89
52 ILR, 93

175
jurisdiction based upon a trilateral compromise. The Argentine Republic and the Republic of
Chile became parties to a General Treaty of Arbitration signed at Santiago in 1902 and His
Britannic Majesty's Government duly accepted the duty of Arbitrator conferred upon them by
the Treaty. When a controversy has arisen between the Parties concerning the region of the
Beagle Channel as per the Treaty, parties requested the intervention of UK Government as
Arbitrator. United Kingdom after hearing the Parties and in accordance with the Treaty
formed the arbitration in 1972. However, Argentine in 1972 denounced the Treaty, but both
Parties stated their understanding, which was shared by United Kingdom, that this would in
no way affect the arbitration proceedings in the present case and that the Treaty and the
Agreement for Arbitration (Compromise) would continue in force with respect to those
proceedings until their final conclusion.90 The subject-matter of this arbitration was
extremely sensitive and it is to be noted that the composition of the Tribunal did not include
arbitrators from the region. In the event, the islands in question were awarded to Chile and
the military government in Argentina purported to annul the Award. In spite of this unhappy
outcome, the subject-matter of the dispute was subjected to the mediation of His Holiness the
Pope and the resulting Treaty of Peace did not disturb the allocation of the islands in the
original Award.
5. Several maritime delimitation cases have been dealt with in accordance with Annex VII of
the United Nations Convention on the Law of the Sea, namely:
a. The Southern Blue Fin Tuna case (Australia and NZ v. Japan), Award dated 4 August
2000;91
b. The case of Barbados and the Republic of Trinidad and Tobago, Award dated 11 April
2006;92 and
c. The case of Guyana and Suriname, Award dated 17 September 2007.93
The second category of arbitration cases consists of those heard on the basis of ad hoc
special agreements or compromise. In the period since 1945, cases of this type were as
follows:
1. Rann of Kutch Case (India and Pakistan), Award dated 19 February 1968.94
2. Anglo-French Continental Shelf Case, Award dated 30 June 1977.95
3. Case concerning the Air Services Agreement of 27 March 1946 (United States v. France),
Award dated 9 December 1978.96
4. Guinea-Guinea (Bissau) Maritime Delimitation Case, Award dated 14 February 1985.97
5. Dispute concerning Filleting within the Gulf of St Lawrence (Canada/France), Award dated
17 July 1986.98
90
47 ILM, 164
91
119 ILR, 508
92
119 ILR, 508
93
See Permanent Court of Arbitration, www.pca-cpa.org/showpage.asp?pag_id=1029), Past Cases (Partial List).
94
47 ILM, 164
95
50 ILR, 2
96
54 ILR, 5
97
54 ILR, 303

176
6. Taba Case (Boundary Pillars between Egypt and Israel), Award dated 29 September 1988.99
7. Rainbow Warrior Case (New Zealand v. France), Award dated 30 April 199040 (issues of
State responsibility in re ruling of Secretary-General). 100
8. St Pierre et Miquelon (Maritime Delimitation between Canada and France), Award dated 10
June 1992.101
9. Determination of Maritime Boundary (Guinea-Bissau v. Senegal), Award dated 31 July
1989.102 The aftermath of this Award involved the resort to the International Court on the
part of Guinea-Bissau in an unsuccessful attempt to obtain a declaration of nullity: see Case
concerning the Arbitral Award of 31 July 1989.103
10. Heathrow Airport User Charges (United States–United Kingdom), Award dated 30
November 1992; Suppl. Decision, 1 November 1993,104 and, finally,
11. Red Sea Islands Case (Eritrea and Yemen), Phase One, Award dated 9 October 1998105;
Phase Two, Award dated 17 December 1999.106
Taking into account the track record of the accumulated case law and arbitration jurisprudence, it
is clear that inter-State arbitration provides a major element in the pattern of methods of peaceful
settlement. Consequently, arbitration clearly constitutes a major competitor to both the
International Court and the Law of the Sea Tribunal.
(H) SETTLEMENT UNDER THE AUSPICES OF THE UNITED NATIONS

ORGANIZATION
One of the main objects of the United Nations Organization is the peaceful settlement of
differences between states. Article 2 of the Charter imposes an obligation on the members of the
Charter imposes an obligation on the member of the Organization to settle their disputes by
peaceful means and to refrain from threats of war or the use of force. The General Assembly of
the Organization is empowered by the Charter to recommend measures for the peaceful
adjustment of any situation which is likely to impair the general welfare or friendly relations
amongst the nations. The security council of the organization enjoys a greater power for this
purpose. It is intended that intended that the Security Council can act in connection with the
following two kinds of disputes:
a) Disputes which may endanger international peace and security.
b) Cases of threats to peace or breaches of peace or acts of aggression.
98
77 ILR, 635
99
82 ILR, 591
100
80 ILR, 224
101
82 ILR, 499
102
95 ILR, 645
103
83 ILR, 1
104
ICJ Reports, 1991, 53
105
102 ILR, 215
106

177
The Council may call on the parties to the dispute to settle them by appropriate peaceful or
amicable methods, like negotiation, mediation, ambition, etc. as enumerated above. The Council
is also empowered to make recommendations or decide what measures are to be taken to
maintain or restore international peace and security. The details of the working of the Council
and the General Assembly are discussed in a later Chapter.
(I) JUDICIAL SETTLEMENT
Establishment of International Court of Justice

An international dispute can be settled by means of judicial tribunal. After the First World War,
the Permanent Court of International Justice was established under the provisions of the League
of Nations. It was replaced by the International Court of Justice after the Charter of the United
Nations was adopted. The International Court of Justice is provided in the Charter as the
principal organ, lays down the rules concerning the constitution, jurisdiction, and procedure of
the Court. All the members of the United Nations are ipso facto parties to the statute. States
which are not members of the United Nations can also become parties to the statute under certain
circumstances. It is necessary to discuss here in detail about the constitution, jurisdiction, and the
procedure of the International Court of Justice.
Jurisdiction of the International Court

As a principal organ of UN, the Court performs two roles. In the first place, it is available to
States generally for the purpose of dispute settlement. Thus even States not bound by the system
of compulsory jurisdiction may agree to resort to the Court on the basis of a special agreement.
In this way, the Court is in competition with the practice of ad hoc arbitration. In the second
place, the Court has a jurisdiction of an advisory character, which involves a duty to give advice
to the political organs of the United Nations at their request on any legal question. Article 96(1)
of the Charter allows other organs of the United Nations and specialized agencies to request an
opinion, if they are authorized by the General Assembly to do so.
Article 36, paragraph 2, of the Statute of the Court creates the basis of the system of compulsory
jurisdiction. Clause 2 provides that he States parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and without special agreement, in relation
to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an
international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international
obligation.

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Clause 3 states that the declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain States, or for a certain time. Such
declarations shall be deposited with the Secretary-General of the United Nations, who shall
transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
The incidence of acceptances of jurisdiction in advance under Article 36(2) has varied over the
years. At present, out of 193 member States of the United Nations, 66 States have accepted the
jurisdiction based upon Article 36(2). The number of acceptances as a proportion of parties to the
Statute has steadily decreased but in recent years has been stable. In any event, a good number of
States take cases in front of the Court on the basis of special agreements in preference to going to
arbitration. Since 1984, the Court has been reasonably busy, usually with some 12 cases on the
docket. At present, at least 16 cases are on the docket. From 1946 until the present, the Court has
dealt with 110 contentious cases and 24 requests for advisory opinions.
Functions and Purposes of the Court

The court has been established with following functions
(a) To settle disputes effectively;
(b) To remove issues of public order, such as uncertain boundary lines, and thus to reduce
the risk of conflict.
(c) To develop the rules of the law;
(d) To provide an exemplar for the management of cases by other tribunals.
Evaluation of the Court

The Court is a collegiate body and it maintains a high standard of independence and
professionalism. With rare exceptions, the Court avoids the making of compromise solutions
sometimes to be seen in the work of courts of arbitration.
The court is also sometimes criticised for certain problems which are probably inherent in the
political context in which the Court exists. Some Governments consider that the Court should
deal with cases more expeditiously, while others are put in fear by what can be seen to be too
much haste, especially in relation to matters of fact.
The flow of cases is broad-based and not confined to one type of jurisdiction or to States of a
particular region. Certain cases, such as the Nuclear Tests Cases107 or the Nicaragua Case,108
have attracted forecasts of doom for the Court. But there is no evidence that such decisions had
deterrent effects and the business of the Court actually increased in the wake of the Nicaragua
107
Australia v. France, ICJ Reports, 1974, 253.
108

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case. In any event, the jurisdiction of the Court depends upon consent, and it is always consent
which lies behind the main sources of jurisdiction; that is:
 compulsory jurisdiction by virtue of declarations made under Article 36(2) of the Statute;
 ad hoc consent for particular cases derived from negotiated special agreements;
 Dispute settlement clauses in pre-existing treaties, as in the ELSI case between the United
States and Italy.109 This case was based upon the Treaty of Friendship, Commerce and
Navigation of 1948.
System of Compulsory Jurisdiction

In the context of international relations both in 1920 and in 1945, the conception of compulsory
jurisdiction in an international court was very radical indeed and remains so. It is conventional to
assess the role of the Court almost exclusively in terms of the progress and rate of development
of the system of compulsory jurisdiction. In the United Kingdom and elsewhere, the
conventional view has been that there is a qualitative deterioration in the system of compulsory
jurisdiction:
 There is the practice of making reservations. It was in fact recognized from the very
outset that States accepting the compulsory jurisdiction had a certain power to define the
classes of legal disputes with respect to which the declaration of acceptance was to apply,
and to impose conditions ratione personae. But the variety and nature of the reservations
was perhaps not fully appreciated.
 There is the use of the ―automatic reservation‖. The U.S. Declaration of 1946, withdrawn
in 1985, included the reservation relating to disputes ―essentially within the domestic
jurisdiction of the U.S. as determined by the U.S.‖.
 There is the reservation of the right to withdraw acceptance at will, and at any moment,
by notice to the Secretary-General of the United Nations.
Enforcement of Court‘s Decision

The International Court itself has no powers of enforcement, but according to article 94 of the
Charter of the United Nations: If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give effect to the judgment. Few state parties to a case before the ICJ (or
before its predecessor, the PCIJ) have failed to carry out the court's decisions.
Two exceptions are Albania, which failed to pay £843,947 in damages to the United Kingdom in
the Corfu Channel case (1949), and the United States, which refused to pay reparations to the
Sandinista government of Nicaragua and violated the court‘s decision in Nicaragua v. US
(1986). The United States also withdrew its declaration of compulsory jurisdiction and blocked
Nicaragua's appeal to the UN Security Council. In general, however, enforcement is made
109

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possible because the court's decisions, though few in number, are viewed as legitimate by the
international community.
Reasons for negative performance of the court

Symbolic Significance of the compulsory jurisdiction
The compulsory jurisdiction is having symbolic significance and this explains the tendency to
make the Optional Clause the only measure of the performance of the Court, and to regard it as a
criterion of successful operation. But many States are prepared to use the Court on the basis of
special agreements, sometimes even when they could have used the Optional Clause jurisdiction.
Since 1945, some major disputes have been submitted to the Court by means of special
agreements.
The second source of slow progress of the court related to the significance of reservations
and is perhaps exaggerated. They were always part of the scheme of things and indeed the
possibility of making reservations was seen by the League Assembly as a means of encouraging
adherence to the Optional Clause. In any case, the Court has placed limitations on the process of
exploiting the principle of reciprocity. The significance of the automatic reservation has been
less than expected:
1. After it backfired against France in the Norwegian Loans Case,110 it looked less useful.
2. Originally the U.S. example was followed by five States. Of States presently ―Parties‖ to
the Optional Clause, very few employ the automatic reservation.
3. It may be noted that the automatic reservation was not invoked by the United States in the
Nicaragua case.
4. The criticism of the court is also arising from the question of procedural reforms. In the
1978 Rules of Court, various criticisms were taken into account. And in any case, it may
be doubted whether internal procedural reform is a major issue.
Performance of the Court

The compulsory jurisdiction has been matter of failure because of practice of reservation.
However, the statistical figures of the decisions revealed that the performance of the Court was
modest. The quantum of cases disposed by the court is a remarkable progress and counter to the
criticism against the court. The old court (PCIJ) decided 30 contentious cases leading to
judgment in the duration of 18 years (1921-1939). The standing court (ICJ) decided 112
contentious cases and 24 Advisory opinions leading to judgment in the duration of 66 years
(1946-2011). However, Prof. Ian Brownlie pointed out that this type of arithmetic is a poor index
of the practical significance of the Court. Other indices and factors should be taken into
account.111 Since 1984, there has been a regular flow of work. The flow of business is broad-
based and not confined to one type of jurisdiction or to States of a particular region. This is a
110
ICJ Reports, 1957, 9, at 24. 55.
111
Ian Brownlie, Principles of Public International Law, 5th ed. (1998);

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significant element in any assessment of the work of the Court. It is to be emphasized that the
cases before the Court have a special character. The true analogy is with public law and the key
question is often status and not compensation. According Brownlie quantity or many other
considerations suggesting that court is slow, negative, conservative etc. is normally presented is
exaggerated to a substantial degree.
A high proportion of decisions concern the status of territory and the allocation of important
resources. Such decisions include the following:
 Anglo-Norwegian Fisheries;112
 North Sea Continental Shelf Cases;113
 Gulf of Maine case;114
 Chad v. Libya;115
 Denmark v. Norway;116
 Cameroon v. Nigeria.117
Prof Brownlie, in his lecture to Chinese University came to conclusion that, he find more
problematical aspects of the process of adjudication, whether in the International Court or in
courts of arbitration. The special attraction of adjudication is that it is definitive and removes a
source of political antagonism and tension between the parties. The alternative is either
negotiation, which involves the responsible officials in making compromises, or inaction. At the
same time, adjudication involves a loss of political control over a situation.118
As Sir Gerald Fitzmaurice has observed:119 the main conclusion … is that apart from the natural
reluctance to litigate felt by almost everyone, governments prefer to deal with disputes by
political means rather than by submission to adjudication, and fight shy of the commitment
involved by going to law: they dislike the loss of control that is entailed over the future of the
case, the outcome of which they can no longer influence politically once it is before a court of
law, since this will then depend upon legal considerations with which they do not find
themselves at home. They much prefer a political forum such as the United Nations in which
leverage can be exercised through the influence of majorities. In general, the proliferation of
international organisations has proved a disservice to the cause of international adjudication.
In any event, adjudication has certain inherent limitations. In the first place, the International
Court is to a great extent dependent upon the parties when it comes to matters of fact and the
112
ICJ Reports, 1951, 116
113
114
115
116
117
118
Ibid
119
Institut de Droit International, Livre du Centenaire 1873–1973 (1973), 279

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Court is reluctant to ask questions of the parties. And there is no appeal. Second, the
International Court sometimes operates in legal fields on the margins of normal areas of
justiciable issues. The Gabcikovo case between Slovakia and Hungary is a good example of this
experience. With a degree of confidence in the survival of the contractual framework (the 1977
Treaty), the Court held by 13 votes to 2: that Hungary and Slovakia must negotiate in good faith
in the light of the prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the Treaty of 16 September 1977, in accordance with such
modalities as they may agree upon.120 In cases such as this, the Court is, in effect, transferring
the burden of decision-making back to the parties. While the intention is to be constructive, the
result is contradictory because the parties in the Special Agreement of 1993 had expected the
Court to answer the questions formulated in Article 2. Prof Brownlie made some important
observation in the form of following propositions:
 First, the system of peaceful settlement of inter-State disputes is a significant part of the
universe of international relations.
 Second, the modalities are very varied and adjudication is simply one instrument forming
part of an entire orchestra of modes of peaceful settlement.
 Third, in relation to settlement on the basis of law, the practice of arbitration is as
significant as the work of standing tribunals, such as the International Court.
 Fourth, the system we have is not attuned to the settlement of purely political disputes.
 Fifth, the International Court has a successful record of the settlement of disputes
concerning territory and delimitation, including maritime delimitation.
 And lastly, resort to both the International Court and to ad hoc arbitration constitutes the
general practice of all regions.
120
ICJ Reports, 1997, 7, at 83.

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CHAPTER 15
LAW OF WAR AND THREAT OR USE OF FORCE

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FORCIBLE OR COERCIVE SETTLEMENT
When states fail to agree to solve their disputes by peaceful methods, they may take recourse to
forcible means. The following are the principal forcible modes of settlement:
(a) Retorsion
(b) Reprisals
(c) Pacific Blockade
(d) Intervention
(e) War.
Each of the above is discussed below in necessary details.
(a) RETORSION
Starke defines retorsion as ―retaliation by a state against discourteous or inequitable acts of
another state, such retaliation taking the form of unfriendly legitimate acts within the competence
of the state whose dignity has been affronted‖. Retorsion may take the form of severance of
diplomatic relations, or withdrawal of tariff concessions, or revocation of diplomatic privileges.
Under the U.N. Charter, it is doubtful whether the Member states can take recourse to the use of
retorsion. Article 2, Para 3, of the charter enjoins on the Member states to settle their disputes by
peaceful means in such a way as not to endanger peace and security and justice, it appears such
act of retorsion, though legal under traditional international law, would be illegal under the
charter.
(b) REPRISALS
Reprisals are the retaliating measures adopted by states for obtaining redress from another state.
Reprisals might take the form of boycott of the goods of a particular state, an embargo, or the
seizure of property or person. The min distinction between reprisals and retorsion is this that
retorsion, in itself, is not illegal, though it may be treated as unfriendly, whereas the reprisals, but
for justification under International Law, would be illegal
A reprisal is justified if the state against which it is directed has been guilty of an international
delinquency. Such delinquent state must have been requested to give satisfaction for the wrong
done. Only when such delinquent state fails to give such satisfaction, can reprisal is taken
recourse to. Such measures are not justified it they are disproportionately excessive.
There is also another opinion that a state should not take recourse of reprisal unless and until
negotiations for the purposes of securing redress from the delinquent state are carried no, and
such redress is not available. Reprisal, during times of war between belligerent states, must be

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distinguished from reprisal as a forcible means of obtaining redress for an international

delinquency. There have been several cases of states taking action in the nature of reprisal. For
example, when King Alexander was murdered, Yugoslavia expelled the Hungarians from its
territory in 1935.
The legality of reprisal as a means of settlement of disputes is highly doubtful so far as the
Member states are concerned. Article 2, Para 3, which has been referred to in connection with
the reprisal, obviously imposes an obligation on the Member state not to take recourse to
reprisals. Para 4 of the same Article enjoins of the Member states to refrain from the threat or use
of force against the territorial integrity or political independence of any state. Reprisal in its very
nature being a threat, or sometimes even being use of force, is inconsistent with the obligation of
the Member states under the Charter. Article 33 of the Charter further imposes an obligation on
the Member states to seek a solution to a dispute, the tendency of which is likely to endanger
peace and security, by negotiation and other peaceful means.
(c) COLLECTIVE REPRISALS

Under Geneva Drugs Convention, 1931, embargo can be imposed on import or export of
Narcotic drugs against states which may have abnormal accumulation of such drugs.
(d) PACIFIC BLOCKADE

In times of war, the blockade of an enemy port is a common naval operation. However, pacific
blockade is a measure which is employed in times of peace. A pacific blockade is intended to
coerce states whose ports are blockaded into complying with a request for satisfaction by the
blockading states. The legality of this method is doubtful. According to starker, this is now
obsolete in the light of the United Nations Charter. Starke thinks that this method has certain
advantages because this is less violent than war.
The first pacific blockade was employed in 1827, and thereafter, it has been used internationally
more than 20 times. History shows that this method was generally employed by strong states
with powerful naval forces, against weaker states. Pacific blockade has even been used to
prevent the outbreak of war, as seen in the case of the blockade of Greece in 1886. In fact, Art.
42 of the U.N. Charter specifically mentions blockade as one of the operations which the
Security Council may initiate to maintain or restore international peace and security. It is now
generally agreed that a blockading state has no right to seize ships of third states, which attempt
to break a pacific blockade. This would also imply that third states are not bound by law to
respect such a blockade.
The selective blockade of Cuba by the United Stated in 1962, although imposed in times of
peace, cannot be called a ―pacific blockade‖ in its true sense. The purpose of the blockade was
not to stop entry and exit of all goods to and from Cuba. The real intent was to prevent the

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supply of certain weapons and equipment to Cuba, to prevent the establishment of missile bases
in Cuba.
(e) INTERVENTION
Intervention is dictatorial interference, in opposition to the will of the particular state affected,
and intended to impair the political independence of the state. Professor Winfield classified
intervention into three categories:
 International intervention.
 External intervention.
 Punitive intervention: Punitive intervention is by way of reprisal. To what extent this kind of
intervention is legal under the United Nations Charter is doubtful. It appears that, as in the
case of retorsion and reprisal, any intervention which would be inconsistent with Article 2 of
the Charter would be illegal.
(f) WAR
War is the ultimate sanction of international law. When other measures fail, the aggrieved state
may impose terms of settlement on the delinquent state by waging a war. The rules of War are
discussed in detail in the next Chapter, but it must be noted that the right to wage war is now
restricted both by the Briand-Kellogg Pact and also the obligations of the Member states under
the United Nations Charter.
(C) LAW OF WAR

Definition of war
Hall defines War as follows: ―When difference between states reach a point at which both parties
resort to force, or one of them dose acts of violence, which parties resort to force, or one of them
does acts of violence, which the other chooses to look upon as a breach of the peace, the relation
of war is set up, in which the combatants may use regulated violence of war is set up, in which
the combatants may use regulated violence against each other, until one of the two has been
brought to accept such terms as his enemy is willing to grant‖. This definition of war by Hall has
obtained judicial approval in Driefontein Consolidated Gold Mines v. Janson. Stark defines war
as a ―a contest between two or more state, primarily through their armed forces, the ultimate
purpose of each contestant or each contestant group being to vanquish the other or others and
impose its own conditions of peace‖.
War Proper and Other Armed Confects

Though the term ―War is generally used to denote armed confects, it does not suggest only one
idea. War, in the general sense of the term, might include war in the strict sense of the term, non-
war armed conflicts, or sometimes it might even include a situation where there is no armed

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conflict at all. For example, the hostility in Korea (1950-1953), fighting in Indo-China (January
1947-1954), and the Conflict regarding the Suez in 1956 are instances of non-war armed
conflicts. In the same way, Japan described its hostile activities against China as ―the China
incident‖. This distinction between ―War‖ proper and ―non-war armed conflicts‖ is made on
account of the following reasons:
1. The Briand-Kecking Pact of 1928 has made war illegal. Therefore, states attempt to
escape the allegation of having violated the obligation under the above treaty by calling
their armed conflicts as ―non-war armed conflicts‖.
2. Another reason for calling this hostility as non-war armed conflicts is to prevent non-
contesting states from declaring their neutrality and hampering the conduct of the
hostilities by neutrality regulations.
3. The third reason is to localize the conflict and prevent it from attaining the dimension of a
general war.
Status of War
Besides, the distinction between a war proper and non-war armed conflict, another concept in the
law of war seems to have been developed recently. According to this concept, there is a formal
status of armed hostilities depending on the intention of the parties to be belligerent. The test of
war is not in actual active military engagements, but it is in the intention. For example, during
the second Would War, though fifty states declared war against the Axis powers, less than half of
the Besides, even after the termination of the actual armed conflict, the status of war continued
for quite a long time.
In conclusion, it may be said that there could be a status of war without an armed conflict, or
there could be an armed conflict not amounting to war proper, or there could be both a status of
war and an armed conflict.
Other Classification of War

Many old writers on International Law have classified war as public or private war, mixed war,,
perfect or imperfect war, just or unjust war, and formal or informal war. Besides, writers speak
of civil war, Guerrilla war, total war, and cold war. These classifications, in the context of
modern international law, are of very little use.
Between a state of peace and war or non-war armed conflicts, there can be various grades of
hostile relations, as for example, ―the cold war‖ existing between Western and Communist
groups of states. However, it has been held that ―the cold war‖ is not a war for the purpose of
determining who enemy aliens are. Nevertheless, ―the cold war‖ has repercussion on
international law. The main question has been whether parties to such cold war can take
measures which would otherwise be a breach of international law, for the purpose of self-defense
where there is no armed attack. The incident of the flight of the United States U-2 air-craft over

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the Russian territory in 1960 and the shooting of the aircraft raises this controversy. Similarly,
the action taken by United States regarding Cuban territory in 1962 also raises this question.
Historical Development of Law of War

There have been certain laws arising out of longstanding customary practice, which have
regulated the use of force during times of war. After the Nineteenth century, these customary
rules have given place to rules framed in treaties and Conventions. The following treaties or
Conventions are the most important amongst those which have prescribed certain laws of war:
1. Declaration of Paris, 1856: This Declaration was the first attempt to prescribe certain rules,
regarding the regulated use of force.
2. The Geneva Convention, 1864: This Convention prescribed rules of the amelioration of
condition of wounded soldiers in war.
3. The Declaration of St. Petersburg, 1868: This Declaration prohibited the use of certain
kinds of projectiles.
4. The Hague Convention, 1899: This Convention prohibited the use of certain expanding
bullets known as the ―Dum Dum‖ bullets. This also prohibited the projecting or exploding of
deleterious and dangerous gases.
5. The Hague Convention, 1907: This Convention prescribed rules regarding the use of Flag
of troops, uniform of the enemy and improper use of distinctive badges, etc. The Convention
also forbade killing or wounding an enemy who laid down his arms.
6. The Geneva Gas and Bacteriological Warfare Protocol, 1925: This Convention
prescribed rules prohibiting the use of poisonous gases and indulging in bacteriological
warfare.
7. The Submarine Rules Protocol, 1936
8. The Geneva Red Cross Convention, 1949: Four Conventions were concluded in Geneva in
1949 relating to –
a. The treatment of prisoners of war.
b. Amelioration of the condition of the wounded and sick in armed forces in the field.
c. The amelioration of the condition of wounded sick and shipwrecked members of
armed forces at sea.
d. The protection of civilian persons in time of war.
The essential purpose of all these rules, as pointed out by Starke, is not so much to provide a
code governing the game of war, but humanitarian reasons to reduce or limit the suffering of
individuals and to circumscribe ―the area within which the savagery of armed conflict is
permissible‖. As Starke points out, these rules have been very often violated, and probably in the
modern context of unclear weapon and missiles, these rules are unrealistic.
Commencement of War – Is Declaration Necessary?

The practice regarding the commencement of war has varied from time to time. P to the sixteenth
century, the practice of notifying an intended war was prevalent. The proactive fell into disuse.

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In the seventeenth century, the opinion of the jurists was that a declaration of war was necessary.
This opinion does not seem to have been put into proactive during that period. In the nineteenth
century also, it was accepted that a war would commence only after some kind of declaration or
ultimatum. But during the twentieth century, this practice of declaring war before starting
hostilities does not seem to have been uniformly practiced.
For example, in 1904, Japan started war against Russia by a sudden and unexpected attack on the
Russian navy in Port Arthur. After this incident, the Hague Convention of 1907 on the Opening
of Hostilities, laid down that hostilities should not commence without a prior deflation or
ultimatum. It was also provided that the neutrals must also be notified of the existence of the
state of war, and further that no action could be taken against neutral states, unless they were
notified of the existence of war. But this Convention seems to have been scarcely heeded to by
various states during the twentieth century.
INTERNATIONAL LAW AND RIGHT TO RESORT TO WAR (LEGALITY OF WAR)

Tough from the times of Grotius, the distinction between just war and unjust war has been
accepted in international law; the distinctive feature of the twentieth century has been that
several attempts were made to regulate the use of war as a method of settling disputes between
states.
(a) THE COVENANT OF THE LEAGUE OF NATIONS
Several articles of the Covenant imposed a restriction on the Member states regarding their right
to resort to war in the strict sense of the term. According to this Covenant, the Member states
could take to war, in the strict sense, only if there was a breach of obligation connected with an
arbitration or a judicial settlement of certain disputes, or if there was a violation of the
recommendation of the League of Nations Council. The Covenant further imposed certain
restrictions on the right of states to take recourse to non-war hostilities.
(b) THE CHARTER OF THE UNITED NATIONS

This Charter was a great step in advance of the above two documents towards abolition of war as
a method of solving international disputes. The Charter not only prohibits war in the strict sense
of the ―breaches of the peace‖ and ―acts of aggression‖. The Member states agreed to settle their
disputes by peaceful means and they also agreed to submit themselves to the overriding peace
enforcement function of the Security Council. It appears that now wars are out-lowed in
international law. But, at the same time, it is necessary to make a distinction between aggressive
wars and wars in the nature of self-defense. International Law has prohibited aggressive wars.
The Security Council of the United Nations is empowered to control such acts of aggression, and
it is clear from the judgments of the Nuremburg and Tokyo Tribunals that waging a war of
aggression or waging of a war in violation of International Treaty is illegal and it is an act in the
nature of a war crime. But considerable difficulty has been felt in defining the term ‗aggression‘.
The special Committee on the Question of Defining Aggression, established by the United

189
Nations General Assembly 1954, has not been able to do mush useful work in the direction of
defining aggression. For that matter, there is also an opinion prevailing amongst jurists that it is
neither necessary nor possible to define an act of aggression. Defining an act of aggression may
be an invitation to wage war by means other than those covered by the definition. Therefore,
according to them, International Tribunals must decide whether a particular act is an aggression
or not.
EFFECT OF WAR AND OF ARMED CONFLICTS
The out -break of a war has serious consequences on the following:
(a) On the enemy character of persons or things
(b) On diplomatic relations
(c) On treaties
(d) On enemy property
Each of these is discussed below.
(a) ENEMY CHARACTER OF PERSONS OF THINGS

After the outbreak of war, it is very essential to ascertain the enemy character of persons. This
varies from one municipal local system another; yet certain common rules can be formulated as
under:
1. Hostile combatants and subjects of enemy‘s states residing in enemy territory are
enemy persons.
2. Even a territory under the effective military occupation of the enemy will be treated
as an enemy territory for this purpose.
3. According to the Anglo-American legal system, even neutrals residing or carrying on
business in enemy territory are considered as enemy persons. But subjects of enemy
states residing in a neutral territory are not considered to be of enemy character.
But, of late, this residence test seems to have been modified by the test of enemy influence or
association. The House of Lords adopted this test in the case of Daimler Co. v. Continental Tyre
And Rubber Co. (Great Britain) (1916). The facts of the case are as follows: The Continental
Tire and Rubber Co. Ltd. were formed in 1950, with its registered office in London. Its Directors
were German subjects, and excepting one, all the shares were held by the German Companies of
German nationals, the Continental Tire and Rubber Co. The letter pleaded that the former was an
alien enemy, and they were restrained from making payment to such enemy by the operation of
an Act of Parliament. Therefore, it was necessary to decide enemy character. The House of
Lords, holding that the Continental Tire and Rubber Co. Ltd., was of enemy character, laid down
the following principles:
1. The enemy character may be assumed by a corporation, if its agents, or the persons in de
facto control of its affairs, are resident in any enemy country, or wherever resident, are
adhering to the enemy or taking instructions from or acting under the control of enemies.

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2. A company incorporated in the United Kingdom could as such be neither a friend nor an
enemy; yet such a company could only act through its agents, and these might assume an
enemy character in time of war if they were resident in the enemy country or were acting
under the instructions of enemy shareholders.
3. The character of individual shareholders cannot of itself affect the character of the company.
It depends on the question whether the company‘s agents, or the persons in de facto control
of its affairs, are in fact adhering to, or taking instructions from, or acting under the control of
enemies.
4. A company registered in the United Kingdom, but carrying on business in a neutral country
through agents, properly authorized and resident there or in neutral country, is prima facie to
be regarded as a friend, but may, through its agent or person in de facto control of its affairs,
assume an enemy character.
5. A company registered in the United Kingdom, but carrying on business in an enemy country,
is to be regarded as an enemy.
SHIPS AND ENEMY CHARACTER

A ship will be considered to be of enemy character if it bears the enemy flag, but sometimes an
enemy-owned vessel, even though bearing a neutral flag, may be considered to be of enemy
character under the following circumstances:
THE EFFECT OF WAR ON DIPLOMATIC RELATIONS

When war takes place, diplomatic relations come to an end. The diplomatic representatives must
proceed home from the belligerent countries.
THE EFFECT IF WAR ON TREATIES

The effect of war on existing treaties is, according to Mr. Justice Cardozo, ―one of the unsettled
problems of the law‖. There are two views regarding the effect of war on existing treaties: One
view, the old view, is that such outbreak of war would ipso facto result in the annulment of all
treaties between the belligerent states. The other view, the modern view, is that International
Law ―does not preserve treaties or annul them, regardless of the effects produced. It deals with
problems pragmatically, preserving or annulling, as the necessities of war exact‖.
According to this view, two tests must be applied in this connection. The first test is to ascertain
whether the signatories of the treaty intended that the treaty should remain binding on the
outbreak of the war. The second be compatible with the conduct of war. Applying these tests,
starker some up the effect of war on the treaties as under:
1. Treaties between the belligerent states which presuppose the maintenance of common
political action or good relations between them, for example, trample, treaties of alliance, are
abrogated.

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2. Treaties representing a completed situation, or intended to set up a permanent state of things,

for example, treaties of cession or treaties fixing boundaries, are unaffected by war and
continue in force.
3. Treaties to which the belligerents are parties relating to the conduct of hostilities, for
example, The Hague Convention of 1899 and 1904, and other treaties prescribing rules of
warfare, remind binding.
4. Multilateral Conventions of the ―law-making type, relating to health, drugs, protection of
industrial property, etc., are not annulled on the outbreak of war, but are either suspended and
revive on the termination of hostilities, or continue to apply even in wartime.
5. Sometimes, express provisions are inserted in treaties to cover the position on the outbreak of
war. For example, Article 38 of the Aerial Navigation Convention, 1919, provided that in
case of war, the Convention was not to affect the freedom of the contracting states either as
belligerent or as neutrals, which meant that, during war, the obligations of the parties became
suspended.
REVIVAL OF A TREATY AFTER CESSATION OF WAR

It is held by some authorities that a treaty suspended during a war will not be revived ipso facto.
After cessation of the hostility, they can be revived only if the peace treaty so provides.
EFFECT ON ENEMY PROPERTY

Enemy property may be either property owned by the enemy state itself, or it may be property
owned by private citizens of the enemy state.
PROPERTY OWNED BY THE ENEMY STATE

If such property is moveable and if it happens to be in the territory of a belligerent state, the
belligerent state can confiscate it. Immovable property situated in the territory of a belligerent
state may be used, but it cannot be acquired.
PROPERTY OWNED BY PRIVATE CITIZENS OF ENEMY‘S STATE

The modern practice is to seize such property temporarily, but not to confiscate it. The disposal
of such property will be determined by the peace treaty. Such private property must not be
plundered or confiscated or otherwise interfered with, unless it is of immediate use in war, even
though such property is situated in occupied enemy territory. But enemy ships and enemy
cargoes can be seized and confiscated.
In addition to this, the outbreak of war may have certain effects on commercial contracts entered
into between the subjects of the belligerent states. Such effect is regulated purely by the
municipal laws of the belligerent states. In this connection, the state practices vary. According to
the laws of some countries, such contracts may be terminated by the outbreak of war, and

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according to the municipal law of certain other countries, the performance of the contract may be
suspended for the duration of the hostilities, if the nature of the contract permits such suspension.
PROHIBITION OF TRADING AND INTERCOURSE IN WAR-CONTRACTS

Trading and intercourse between the subjects of belligerent states cease on the outbreak of war,
and usually, special legislation is introduced to cove the matter. The details of state practice in
this connection vary, but it can be said that international law gives belligerent states the widest
freedom in the enactment municipal laws dealing with the subject.
Similarly, with regard to contracts between the citizens of belligerent states, international law
leaves states entirely free to annul, suspend, or permit such contracts on the out-break of war.
Consequently, this is a matter primarily concerning municipal law. Most of the states treat
executor contracts, which may give aid or add to the resources of the enemy, to be void.
Executed contracts and liquidated debts are suspended during the war.
COMBATANTS AND NON-COMBATANTS

Traditionally, international law maintains a distinction between combatants and non-combatants.
Non0combatants are not, in principle, to be attacked or injured. However, certain classes f non-
combatants, like merchants, seamen, may be captured and made prisoners of war. This was an
accepted principle of international policy in the nineteenth century, as the main object of the war
was to weaken the military force of the enemy. The Hague Convention IV of 1907 on the Laws
and Customs of War on Land and its annexed Regulations attempted to make a clear-cut
distinction between the civilians and the armed forces.
Combatants are divided into two classes: Lawful. Lawful combatants may be killed or wounded
in battle or captured or made prisoners of war. Unlawful combatants are liable to capture and
detention in addition to trial and punishment by military tribunals for their offences. If a citizen
or person owing allegiance to belligerent state A enlists as a member of the armed force of the
opposing belligerent state B, he cannot claim the privilege of a lawful combatant, if he is
subsequently captured by state A. A student of international law has to accept that under the
demands of military necessity in two World Wars, the distinction between combatants and non-
combatants has almost disappeared. The modern ―blind weapons‖ of war have made such
distinction very difficult.
The distinction between combatants and non-combatants is also important in the present context
of Artillery bombardment; naval bombardment; Blockade; Aerial bombardment; & Contraband.
The conclusion is that the non-combatants may not be the primary objects of above mentioned
six operations of war, but they are denied any substantial protection from injury that may be
caused by such operations. It is regrettable that distinction between combatants and non-

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bombardments and in the case of the use of atomic, hydrogen and nuclear weapons, which are
after referred to as ―blind‖ weapons.
AERIAL BOMBARDMENTS
Starting with the Hague Regulation of 1907 to 1968, several attempts have been made to prevent
bombing of civilians. But all that is achieved is an attempt to prohibit international attack on
civilian. The experience of the two World Wars has shown that such prohibitions are of little use.
At present, the problem of increased protection of civilian populations and civilian objectives in
times of armed conflict has been engaging the attention of the Geneva Conference of the Re-
Affirmation and development of International Humanitarian law applicable in armed Conflicts.
This is an attempt to revise and update applicable the Geneva Red Cross Convention of 1949.
It appears that any attempt to distinguish military and civilian objectives and population is futile,
in the case of the above-mentioned ―blind‖ weapons. The only remedy appears to be the
prohibition of the use of these weapons. In this connection, the following treaties have been
concluded:
(a) Nuclear Weapons Test Ban Treaty of 1963;
(b) The Outer Space Treaty of 1967 (Banning Nuclear Weapons in Outer Space);
(c) The Nuclear Weapons Non-Proliferation Treaty of 1968;
(d) The Treaty of 1971, prohibiting the emplacement of Nuclear Weapons and other Weapons of
Mass Destruction on the Sea bed and Ocean floor.
THE BELLIGERENTS, THE COMBATANTS, AND THE NON-COMBATANTS

The Convention, at the very outset, distinguished between combatants and non-combatants. The
combatants may be killed or wounded in battle or captured and made prisoners of war. The non-
combatants are not to be heavily attacked or injured. Amongst combatants, there might be lawful
combatants and unlawful combatants. Guerrilla troops and militia will be treated as lawful
combatants and will be subject to the laws, rights and duties or war if they fulfill the following
conditions:
(a) They must be properly commanded.
(b) They must have fixed distinctive emblem recognizable at a distance
(c) They must carry arms openly.
(d) They must conduct their operation in accordance with the laws and customs of war.
LEVY EN MASSE
By levy en masse is meant the organized or spontaneous rising of the civilian population against
the enemy. Such rising of civilian population must satisfy two conditions to be considered as
lawful combatants if their rising is spontaneous. Those conditions are the following:
(a) It must carry arms openly.
(b) It must respect the laws and customs of war

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On the other hand, if the civilian population is called to take up arms by the authorities, they
must satisfy all the four conditions prescribed for the Guerrilla troops if such population is to be
considered as lawful combatants.
INTERNATIONAL HUMANITARIAN LAWS OF WAR
The Geneva Red Cross Convention, 1949:

Four Conventions were concluded in Geneva in 1949 relating to –
(a) The treatment of prisoners of war.
(b) Amelioration of the condition of the wounded and sick in armed forces in the field.
(c) The amelioration of the condition of wounded sick and shipwrecked members of
armed forces at sea.
(d) The protection of civilian persons in time of war.
The essential purpose of all these rules, as pointed out by Starke, is not so much to provide a
code governing the game of war, but humanitarian reasons to reduce or limit the suffering of
individuals and to circumscribe ―the area within which the savagery of armed conflict is
permissible‖. As Starke points out, these rules have been very often violated, and probably in the
modern context of unclear weapon and missiles, these rules are unrealistic.
Rules of Land Sea, and Air Warfare

For a detailed examination of these laws of war, it would be necessary to divide wars into their
aspects:
(a) Land warfare;
(b) Sea warfare; and
(c) Air warfare
(a) Rules of Land Warfare
The main rules regarding land warfare are set out in the Hague Convention of 1907 on the Laws
and Customs of War on Land and its annexed Regulations.
TREATMENT OF PRISONERS OF WAR

The Hague Rules of 1907 contained certain provisions regarding the treatment of prisoners of
war. Now, those rules are supplemented by the Geneva Convention of 1949. According to this
Convention, strict duties are imposed on those who capture prisoners of war. An obligation is
imposed on them to treat the prisoners of war humanely, and not to expose such prisoners of
unnecessary brutality. It is also provided in the Convention of 1949, that prisoners of war should
be released without delay after the cessation of active hostilities. But during the Korean conflict
(1951-1953), a curious situation arose when the United Nations command wanted to release
many of the prisoners of war who were unwilling to be repatriated, as they feared persecution.

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Therefore, it was necessary for the United Nation Command to take to what was called
―screening‖. Starke rightly points out that this practice of screening might be opposed in future.
TREATMENT OF WOUNDED AND SICK MEMBERS

The Convention of 1949 provided certain rules requiring the belligerents to protect wounded and
sick personnel and to give facilities for the medical units, namely caring for such personnel.
THE METHODS & MEANS OF COMBAT AND THE CONDUCT OF HOSTILITIES
The Hague Rules of 1907 prescribe certain rules forbidding the use of poisonous weapons or
projectiles. It also provides rules prohibiting bombardment of open cities.
The Rules of Sea Warfare

These rules are partly regulated by customary International Law and partly by the Declaration of
Paris 1856, The Hague Convention of 1907, and the Submarine Rules of Protocol of 1936. The
object of maritime warfare is to deprive the enemy of those means of communication which the
high seas in their character as res nullius afford to every nation, to defeat the enemy navy and
annihilate enemy merchant fleet. As a general rule, public and private vessels of the enemy may
be attacked and captured in their own ports and waters, in the ports and waters of the attacking
power and on the high seas, but not in the neutral or neutralized ports or waters. This general rule
has some exceptions.
(a) Hospital ships. The Hague Convention gave immunity to hospital ships from being
captured. Such ships were to be painted white and to fly the Geneva Flag. This rule was
not meticulously followed by the Germans in the First World War.
(b) Vessels employed for religious, scientific, or philanthropic purposes are also immune
from capture.
(c) Ships employed in the exchange of prisoners of war are also immune from capture.
The other rules of sea warfare are briefly summed up below:
(1) Undefended ports and towns are immune from naval bombardment.
(2) Floating mines must not be sewn indiscriminately.
The Rules of Aerial Warfare

The laws regarding aerial warfare are contained in the following conventions:
(1) The Brussels Conference, 1874 – According to this conference, bombarding of
undefended towns or villages and of buildings devoted to religion, arts, sciences, and
hospitals was prohibited.
(2) Hague Regulations of 1907 – These Regulations prescribed more definite rules with
regard to aerial warfare. According to these Regulations, Civilian population who
were non-combatant could not be bombarded. Destroying or damaging private

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property was prohibited. Aerial bombardment was legitimate only when directed at a
military objective.
As Starke observes, the history of attempts to protect the non-combatant has not been
encouraging. During the Second World War, the Axis powers remorselessly bombed civilian and
civilian objectives, using various prohibited kinds of bombs.
THE LEGALITY OF NUCLEAR WARFARE AND THE USE OF ATOMIC WEAPONS

During the Second World War, Nagasaki and Hiroshima became the victims of the atom-bomb
attacks of the American forces. An attempt is made to justify the use of the atomic bomb as a
measure of retaliation against the indiscriminate bombing of the civilian population to be the
Axis powers. It should be noted that, even as a measure of retaliation, it was excessive, as it
resulted in the death of a very huge number of civilians. It is very difficult to justify the legality
of the use of nuclear weapons. There can be no doubt that the use of such weapons is not only
opposed to the Hague Regulations, which prescribe the rules of aerial warfare, but it is also
opposed to the rules of other kinds of warfare. It is no argument to say that modern wares a total
war, and therefore, the distinction between the combatants and the non-combatants have
vanished. Acceptance of this argument would lead one to the position of saying that modern
warfare is unregulated by law as it is unlimited in its inhuman cruelty.
WAR CRIMES AND THE NUREMBURG AND TOKYO TRIALS
SANCTIONS AGAINST VIOLATIONS OF LAW OF WAR

According to Starke, ―While the laws of war are frequently violated, international law is not
entirely without means of compelling states to observe them‖. According to him, the following
are the sanctions against violation of the laws of war:
(a) REPRISAL
Starke admits that reprisal is at best a crude and arbitrary form of redress. The sanction of
reprisal could hardly be considered as a sanction against violation of the laws of war, because it
would mean that if the enemy state violates the law of war, the other state would also retaliate by
means of violating some more laws of war. Though it might have been occasionally effective, its
efficacy is highly doubted.
(b) COMPENSATION
According to Article 3 of the Hague Convention (IV) if 1907, a belligerent state violating the
laws of war is liable to pay compensation to the other party. At the time of concluding the peace
treaty, compensation can be exacted from the other state.
(c) PUNISHMENT OF WAR CRIMINALS: WAR CRIMES AND TRIALS

Oppenheim classifies war crimes as follows:

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(a) Violation of recognized rules regarding warfare committed by the members of the armed
forces.
(b) All hostilities in arms committed by individual members of the enemy have armed forces.
(c) Espionage and treason.
(d) Maraud ring Acts (looting and plundering).
Professor Lauterpacht suggests that the term ―war crime‖ should be limited to acts which would
be condemned by the common conscience of mankind, by reason of their brutality, inhumanity
or wanton disregard of the right of property unrelated to reasonable military necessity.
NUREMBURG TRIALS
Facts
After the Second World War, the Allied Forces set up a tribunal known as the International
Military Tribunal to try war criminals of Germany and Japan. The Tribunal held its trial at
Nuremburg to try the criminals of Germany. This Tribunal which presided over the Nuremburg
trial was empowered under a Charter to try the war crimes. The prosecutors of the four allied
nations drew up a list of crimes committed by the war criminals. They were the following:
(a) Aggressive war.
(b) Violation of international treaties.
(c) Common plan of conspiracy.
(d) War crimes and crimes against humanity.
(e) Violation of the Charter.
The main contention of the Prosecutors was that the accused has waged wars of aggression in
violation of the Briand-Kellogg Pact. They had committed unprecedented atrocities. The
following defenses were advanced on behalf of the accused:
(a) It was a fundamental principle of law that there can be no punishment of a crime without
there being a law in existence which made the act punishable. In brief, criminal law could
neither be retrospective nor retroactive.
(b) The defendants were protected by the defense of act of state and they obeyed the orders of
superiors.
(c) Individuals are not subjects of International Law. Therefore, the International Military
Tribunal could not exercise jurisdiction over the individuals.
The Decision
The Tribunal rejected all the three defenses of the defendants and held them liable for
punishment. When they had violated all canons of law and treaty, it was not open for the accused
to plead the absence of any law prescribing punishment as a defence. The orders of the superiors
could not be a defense when the acts were in the nature of unprecedented atrocities. Surely,
Individuals Law imposes duties and liabilities upon individuals as well as upon states.

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CRITICISM OF THE TRIAL

Several eminent writers on International Law have severely criticized the trial. The following are
briefly the points of criticism:
(a) The Charter, which created the International Military Tribunal and the law which the
Tribunal applied, was merely an executive agreement.
(b) Though the Briand-Kellogg Pact declares war as unlawful, it prescribed no punishment for
individuals who violated the Pact.
(c) The Briand-Kellogg Pact, ever since its inception, was more honored in breach than in
obedience.
Therefore, it was unjust to punish the German war leaders alone. The punishment of individuals,
who participated in a war which was in violation of the above mentioned Pact, was
unprecedented. Neither the Japanese leaders who invaded China in 1931, nor the Italian leaders
who invaded Abyssinia in 1935, were punished. On the other hand, these very states, which were
the Prosecutors in the Nuremburg Trial, had acquiesced in those acts which were in the nature of
violation of the Pact.
The Nuremburg Trial was clearly one-sided. If the German war leaders were guilty of
unprecedented atrocities, the atom-bomb attack on Hiroshima and Nagasaki could hardly be
stated to have been ―precedented atrocities‖. During the Second World War, no participant could
claim that his conscience was clear and that he had not committed any of the war crimes.
TOKYO TRIALS
Under the Charter, the Tribunal tried the Japanese war leaders for their war crimes. What has
been said of the Nuremburg trials can also be said of the Tokyo trials.
BELLIGERENT OCCUPATION OF ENEMY TERRITORY
Meaning of Belligerent Occupation

Belligerent occupation consists in taking possession of the enemy territory and establishing an
administration over it. Belligerent occupation must be distinguished on the on hand from
invasion, and on the other hand, from complete transfer of sovereignty. Invasion is only a state of
conquest and does not include the establishment of an administration, whereas in belligerent
occupation, such administration is established. In belligerent occupation, the occupying authority
does not have complete transfer of sovereignty in its favor, but it has only limited military
authority, subject to international law.
In the word of Oppenheim, ―occupation is invasion plus taking possession of enemy country for
the purpose of holding it, at any rate, temporarily‖.

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According to Lawrence, belligerent occupation implies –

(a) Firm possession so that the occupying power has the country under its control; and
(b) A continuance of war, which suggests that the invader has not become a sovereign.
Article 42 of the Hague Regulations, 1907, declares that a territory is said to be occupied when it
is actually placed under the authority of a hostile army, and that such occupation is effective only
when it is supported by a force sufficient to maintain the authority of the occupant.
The consequences of Belligerent Occupation
(A) CONSEQUENCES IN RESPECT OF THE POPULATION

(a) Belligerent occupation does not result in any change of nationality of the local
citizens.
(b) By belligerent occupation, the allegiance of the people is not completely transferred
from the former Government to the occupying authority.
(c) The occupying power, being in the possession of an interim military administration, is
entitled to obedience from the inhabitants, to the extent such obedience is necessary
for the following purposes:
(i) The purpose of the maintenance of public order;
(ii) The purpose of the safety of the occupying force; and
(iii) The purpose of administering the territory in general.
(B) CONSEQUENCES IN RESPECT OF IMMOVABLE PROPERTY

According to Lawrence, immovable property, being bound up with territory, is incapable of
appropriation by the occupying authority, but an actual conflict may justify destruction of
buildings or their use as fortification Troops may be accommodated in private houses, though
inhabitants cannot be ejected to accommodate the soldiers.
(C) CONSEQUENCES IN RESPECT OF PRIVATE PROPERTY

Private property cannot be confiscated. But the occupying authority can requisition in kind and
services for the purpose of supplying the need of the occupying army. They can be demanded
only on the authority of the Commander in the occupied locality. Pillage of private property is
strictly forbidden. Contributions over and above the ordinary taxes may be collected, under the
authority of the General to the extent it is necessary to meet the needs of the army and the
expenses of the administration of the occupied territory. But no hostage can be taken and
collective penalties cannot be imposed.
GENEVA CONVENTION OF 1949 ON PROTECTION OF CIVILIANS IN TIMES OF WAR
This Convention is intended to supplement the provisions of Hague Rules. This Convention
imposed on the occupying authority the following duties, amongst others
(a) Not to take hostage or impose collective penalty on the population, for breaches of
security or interference with the occupying forces by individual inhabitants. This duty of

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not taking hostages negatives the decision in the ―Hostage case‖. According to the
decision, hostages could be taken for the purpose of securing obedience of the local
population. But now, under the Convention, such a power cannot be exercised.
(b) Not to transfer, by force, inhabitants individually or en mass to the other territory.
(c) Not to compel the inhabitants to engage in military operation, or in any work connected
with such operation, other than for the needs of the occupying army.
(d) Not to requisition food and medical supplies, so as to infringe upon the ordinary
requirements of the civilian population.
THE DOCTRINE OF POSTLIMINIUM

This doctrine is based on the Roman Private Law concept of just postlimini. According to this
Roman law doctrine, persons and things captured by the enemy regain their original possession if
they are rescued from the power of the enemy.
Hall describes the doctrine of postliminium as following: When a territory which has been
occupied and a population which has been controlled by an enemy, comes again into the power
of its own state during the progress of a war, or when a state, the whole which has been
subjected, throws off the yoke which has been placed upon it, before a settled conquest has been
clearly effected, or finally when a state or a portion of a state is freed from foreign domination by
the action of an ally before a conquest of which has been consolidated, the legal state of things
existing prior to the hostile occupation is re-established.
This doctrine has lost much of its importance at present, because modern treaties of peace
provide for every minute detail, and therefore, modern treaties of peace provide for ever minute
detail, and therefore, the need for a general application of the doctrine of postliminium may not
arise. However, when peace treaties are silent, the doctrine may play an important role.
THE LIMITATIONS OF THE DOCTRINE

The following limitations of the doctrine of postliminium must however be noted:
(a) The doctrine has no application when a territory is appropriated by the conqueror by
possession and establishment of administration or when a territory is ceded to the
enemy by a treaty.
(b) The doctrine cannot be enforced by any neutral countries.
(c) The legitimate acts done by the occupant cannot fall within the doctrine.
(d) Imposition of contributions and requisition and collection of taxes by the occupant are
immune from the application of the doctrine
THE MODES OF TERMINATION OF WAR AND HOSTILITY

This topic can be resolved into two parts: Firstly, the modes of termination of status of war, and
secondly, the modes of termination of other hostilities.

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(i) THE MODES OF TERMINATION OF STATUS OF WAR

(a) By abstinence from further acts of war: The status of war might come to an end by the
belligerents abstaining from further acts of war and creating a peaceful relation without
formally entering into a peace treaty. There are various instances of termination of war by
this method, but this method leaves behind it an atmosphere of uncertainty. Therefore,
this method has become almost obsolete.
(b) By peace treaty: The status of war might come to an end by the belligerents signing a
peace treaty. This is the most common method of terminating war. The peace treaty
might provide for all the consequences of the termination of the war, like the evocation of
territory, repatriation of war personnel, indemnities, etc. if the treaty is silent regarding
certain consequences, as already pointed out, the doctrine of postliminium may be
applicable. There is another doctrine known as until solidities, which would also be
applicable if the treaty is silent. According to this doctrine, each state is entitled to retain
such property as was actually in its possession or control on the date of cessation of
hostilities.
(c) By armistice agreement: Lawrence defines an armistice agreement as an agreement
abstains from active operation within a limited area for a short time. Such agreements are
generally a prelude to the signing of a peace treaty.
(d) By unilateral declaration: One or more of the victorious powers may declare unilaterally
the termination of the status of war.
(e) By conquest followed by annexation
If one of the belligerent states is completely conquered and annexed, there will be an end of the
war, as the conquered state ceases to exist in the eyes of international law.
(ii) TERMINATION OF OTHER HOSTILITIES

Other hostilities like the non-war armed conflicts may be terminated by the following methods:
(a) By armistice agreement
As already pointed out, an armistice agreement is an agreement to temporarily suspend
hostilities. But this might also be in fact an agreement for the de facto termination of war. Such
an agreement is generally a prelude to a peace treaty.
(b) By Truce
Termination of hostilities by truce is very much similar to termination by armistice agreement.
The only different between these two modes of termination of hostilities is termination by
treaties isles definitive
(c) By cease-fire
When the United Nations Security Council or other International Organ orders or requests the
cessation of hostilities, such cessation is known as cease-fore.
(d) Agreement of cessation of hostilities
There might be an agreement between the participating forces to terminate the hostilities.

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THE RIGHT OF SELF-DEFENCE AND USE OF FORCE

Just as an infidel has a right to use force in the interest of self-defense, so also a state has,
according to customary international law, a right to use force in the interest of its defense. Art. 51
of the Charter of the United Nations recognize this right of a state. According to Article 51, it is
lawful for a state to use force, either collectively or individually, when there is an armed attack
against it, but this right is subject to the enforcement action that may be taken by the Security
Council. In a later Chapter, the legality of the various Regional Pacts is considered to ascertain
how far they are consistent with the Charter.
Law of Self-Defense
After WWI, the League of Nations was established to ensure safety. The states signed the
Kellogg-Briand Pact of 1928 — which is still in force today. The parties condemned recourse to
war for the solution of international controversies, and renounced it as an instrument of national
policy in their relations with one another. The use of force was prohibited. This is the treaty
which was used at Nuremburg, and which Ribbentrop was accused of violating, and for which he
went to the gallows.
United Nations Charter (1945)

The first words are: ―We the peoples of the United Nations determined to save succeeding
generations from the scourge of war, which twice in our lifetime has brought untold sorrow to
mankind . . . .‖
The first purpose of the U.N. is 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.‖
―Acts of aggression‖ isn‘t defined anywhere in the Charter. They left it undefined on purpose. If
they made a list of things that are aggression, then anything not on the list might not count.
Didn‘t want to leave an opening for aggressors. Indirect aggression, however, has not found
favor as an act of aggression here.
General Assembly Resolution 3314 (1974) — Everybody agrees that aggression includes: The
invasion or attack by the armed forces of a state of the territory of another state; or any military
occupation, however temporary, resulting from such an invasion or attack; or any annexation by
the use of force of the territory of another state or part thereof. Bombardment by the armed
forces of a state against the territory of another state or the use of any weapons by a state against
the territory of another state.

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The blockade of the ports or coasts of a state by the armed forces of another state. An attack by
the armed forces of a state on the land, sea, or air forces, marine and air fleets of another state.
The use of armed forces of one state which are within the territory of another state with the
agreement of the receiving state, in contravention of the conditions provided for in the agreement
or any extension of their presence in such territory beyond the termination of the agreement. The
action of a state in allowing its territory, which it has placed at the disposal of another state, to be
used by that other state for perpetrating an act of aggression against a third state. This is why
nobody would let us fly over their territory en route to bombing the shit out of Muammar
Gadhafi. They were unsure as to whether that would count as an act of aggression on our part.
The sending by or on behalf of a state of armed bands, groups, irregulars, or mercenaries, which
carry out acts of armed force against another state of such gravity as to amount to the acts listed
above, or its substantial involvement therein. You‘re just as guilty as if you sent your own army
to do it. It may be an armed attack when you send in armed bands or mercenaries to stage an
attack, but only if you sent them in such a way that their actions were directed and controlled by
you. Merely giving them the arms and the cash and the training isn‘t enough. It may still be
illegal, but it isn‘t use of force.
This is not an exhaustive list, and the Security Council may determine that other acts constitute
aggression under the provisions of the Charter. Not everything counts as a use of force.
Ideological acts, leaflet-dropping, radio broadcasts, etc., don‘t count. It is a fundamental norm of
international law that you do not have the right to engage in acts of aggression or in unlawful use
of force.
 Analysis for All Use of Force Questions:
o Did the states try to resolve it peacefully?
o Did they abide by the U.N. Charter?
o If they did resort to the use of force, was it self-defense? Or was it collective
action?
 Two kinds of self-defense: U.N. Charter self-defense, and preemptive self-defense under
customary international law.
 If not self-defense or a collective action under the Charter, then the force was illegal.
 No matter what the reason for your use of force, was it necessary?
 Unless you can prove a pre-existing customary norm of international law permits it, you
can only unilaterally use force under the U.N. Charter.
Self-Defense under UN Charter

Article 51 — Nothing in the U.N. Charter is to be construed so as to impair the inherent right
(pre-existing the U.N.) of self-defense against armed attack. Does that mean an armed attack
must have occurred against your country? No, the collective use of force provisions of the
Charter permit states to aid other states in defending themselves against aggression.

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An armed attack is not a mere threat of force, nor do all acts of aggression count. The other side
may be engaging in an illegal use of force, but it may still not be an armed attack. You can‘t do
anything in self-defense. Troops are piling up on the other side of the border. Is it a preliminary
to an imminent attack? If so, strike. But if it is just an exercise, wait. For more on what counts
as an ―armed attack,‖ see the Nicaragua case below. It‘s not the same as an act of aggression. If
you‘re subject to an armed attack, you may use force to repel them and stop it. You have to state
that you are under an armed attack. You must immediately report this to the Security Council.
You must promptly report your response actions to the Security Council.
 It should be necessary.
 It should be proportionate.
The Caroline (1906)

This is the most famous case in international law with respect to preemptive self-defense (not in
the U.N. Charter, but customary international law). We had a bunch of nasty battles with Canada
in the War of 1812. The result of the war was a continuing hostility between US and them for
many years. US were always trying to take over parts of Canada afterwards, and the border
between Lake Erie and Lake Ontario was heavily militarized. It was definitely a charged
atmosphere. And Canada was the big power then; US was small fry in those days. Hearing of a
planned United States incursion across the border, the Canadians crossed first, grabbed the ship
The Caroline, killed everyone on board, set the ship completely aflame, and sent it over Niagara
Falls. Side note — When the U.S. blows something up, as in Desert Storm, we say we blew it up
and killed people. When the British blew something up and killed a bunch of people, they only
said ―targets were set alight.‖
As a result of this action, the U.S. Secretary of State, Daniel Webster, and his British counterpart
Lord Ashburton, had an ongoing correspondence about what constituted self-defense. This
ended up with the little country being picked on telling the British in 1842: ―The President sees
with pleasure that your Lordship fully admits those great principles of public law, applicable to
cases of this kind, which this government has expressed; and that on your part, as on ours,
respect for the inviolable character of the territory of independent states is the most essential
foundation of civilization. And while it is admitted on both sides that there are exceptions to this
rule, he is gratified to find that your Lordship admits that such exceptions must come within the
limitations stated and the terms used in a former communication from this department to the
British plenipotentiary here. Undoubtedly it is just, that, while it is admitted that exceptions
growing out of the great law of self-defense do exist, those exceptions should be confined to
cases in which the ‗necessity of that self-defense is instant, overwhelming, and leaving no choice
of means, and no moment of deliberation.‘‖
(a) The necessity must be immediate.
(b) The necessity must be overwhelming.
(c) There must be no other choice.

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(d) There must be no time to deliberate.

(e) It should also be proportional. (This comes from an earlier letter. Here, killing everyone,
burning the ship, and sending it over the falls was not proportional.)
This case keeps coming up over and over, throughout history, on the question of whether
anticipatory self-defense is proper. The criteria listed are the criteria that get cited.
The Nazis went out of their way to make it look like Poland had started it, so as to justify their
invasion. They even dressed up Polish prisoners in German uniforms, shot them and filmed it,
and blamed it on Poland. The Nuremburg tribunal, however, did not buy it.
In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-
defense, but merely a quarantine of Cuba on the high seas to keep the missiles out.
A blockade is a use of force, but it is less intrusive than other kinds. The United States proposed
this in the U.N., and it was representatives from Ghana (who, unlike ours, had been well-
educated in international law) who stood up and cited the Caroline case, asking ―is this
emergency instant, overwhelming, leaving no choice of means, and no moment for
deliberation?‖ When the Israelis bombed Iraq‘s nuclear reactor in 1981 (because it could have
been capable of making weapons-grade plutonium), that also led to lengthy discussions of
whether the standards for preemptive self-defense attacks had been met. Of course, the act had
been done by then.
One side effect of this was for Iraq to put its reactors underground, under hardened shelters.
Every time we come up with a cool bomb that can punch through layer after layer, and can count
how many levels it‘s gone down before exploding at the right one, they come up with something
to stop it.
Non-Charter Uses of Force that are permitted by Customary International Law.
Preemptive self-defense and retrieving your nationals

You go into another country with your armed forces to get your nationals and get out. This is
usually done unilaterally, and it‘s not part of the U.N. Charter, but everybody supports it. The
use of your armed forces can only be for the exclusive, narrowly-tailored purpose of pulling out
your nationals. This can be troublesome when you go in to extract your nationals and wind up
changing the government, taking over, setting up a continuing military presence, etc. (you know,
like we did in Panama and Grenada). Israel had some people in trouble in Uganda. Before they
extracted them, they took out the entire Ugandan air force on the ground. It was a similar
situation to the U.S. and Grenada/ Panama, and they similarly got lukewarm support for their
actions.

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INTERVENTION AND USE OF FORCE

Humanitarian Intervention
Unilateral intervention for humanitarian purposes is not much supported. This is especially true
now that the U.N. sets up multilateral collective intervention even for internal problems, if they
are widespread humanitarian problems. The multilateral stuff is okay. That‘s different from
looking at another country, saying ―they need our kind of government over there,‖ and going
over to help them get it. That‘s what the U.N. was set up to prevent, remember?
Intervention to Effect Changes

Intervention to clean up the other guy‘s system is just bad. It violates sovereignty.
Intervention against Terrorism

Prior to 9/11, there was one case where this has happened — the U.S. strike against Libya after
the Libya-sponsored bombing of a German disco where American servicemen were killed.
This attack was not well-received, but neither was it universally condemned. It‘s hard to attribute
terrorist acts to a state. The response must be calculated to solve the particular terrorism problem.
The response must be narrowly tailored to its purpose. Don‘t go blasting everything, just the
terrorist stuff. The response must be proportionate. If they only killed one of yours, don‘t go
blowing up cities.
Intervention in Civil Wars

Do states have the right to intervene when the rebels invite them? When either side invites
them? In the Nicaragua case (below), the ICJ didn‘t say whether states have a right to intervene
on behalf of the ruling government. It didn‘t prohibit it, though. Previous rules of international
law may make you a belligerent, however. However, the ICJ did specifically state that you
cannot intervene in other countries‘ civil wars on behalf of the opposition.Can‘t do this even if
you were requested to do so.
Older rule was similar. (A big reason why France waited until there was a colonial victory before
aiding us against England in our revolution and they still came in too soon; also one of the
reasons why England stayed out of our Civil War.) This whole area is unresolved, however, so
we need another ICJ decision. Especially now a days, the most fighting is intramural civil strife
and ethnic cleansing.
Nicaragua v. United States, (ICJ 1986)

(Military and Paramilitary Activities In and Against Nicaragua)
The United States still disputes the facts in this case, as well as the actual outcome, but we do
like much of the legal holding, and we are now citing big parts of it in other cases (such as the
right to as many weapons as you want). The U.S. was displeased with the Sandinistas until they
were voted out (in the first free election). Until then, there was some real tension. The U.S.S.R.

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and Cuba were accused of assisting the Sandinistas, who were alleged to have committed acts of
destruction against Honduras and Costa Rica.
The Contras were trying to revolt, and the U.S. was alleged to have assisted the revolution. We
were accused of unauthorized over flights, mining the harbor, training rebels at Camp Perry (the
CIA training camp that we don‘t admit exists).
Four categories of violations:
(a) Violations of sovereignty.
(b) Illegal interventions.
(c) Illegal uses of force.
(d) Illegal uses of force which justified an Article 51 self-defense responses.
Had Ollie North consulted anybody, he would have known that mining the harbor and not telling
anyone is a big-time violation of international law. As are unauthorized over flights. What about
intervening on behalf of the rebels? The United States‘ sole justification for its action was
collective self-defense under Article 51. The court held that there is no such thing as a right of
―collective‖ armed response to acts which do not constitute an ―armed attack.‖ States do have a
right of collective self-defense only if they are under armed attack. So even though Nicaragua
may have been guilty of odious violations of international law, absent an armed attack there was
no right of collective self-defense.
So, in order to justify the U.S.‘s actions, the ICJ had to find an armed attack by Nicaragua
against Honduras or Costa Rica. The U.S. had difficulty establishing this, because US didn‘t
argue the case! That‘s right, US disputed the ICJ‘s jurisdiction, so we didn‘t even send a lawyer
to argue for us. So the only version of the facts that the ICJ had to work with was Nicaragua‘s
version.
Thus, the ICJ never saw the photos; never saw any of the evidence of Nicaragua‘s armed attacks.
So its attacks on Honduras, its shipments to El Salvador, and its attacks on Costa Rica were not
regarded as armed attacks for Article 51 purposes.
Did supplying arms, equipment, and training to the Contras count as an armed attack by the
United States against Nicaragua? No. The United States support of the Contras, as well as the
Nicaraguan support of El Salvadorian rebels, might be violations of international law, and they
might be uses of force, but they are not armed attacks justifying self-defense. Even presuming
that the supply of arms to the opposition in El Salvador could be treated as imputable to the
government of Nicaragua, to justify invocation of the right of collective self-defense in
customary international law, it would have to be equated with an armed attack by Nicaragua on
El Salvador.

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The ICJ was unable to consider that, in customary international law; the provision of arms to the
opposition in another state constitutes an armed attack on that state. Even at a time when the
arms flow was at its peak, and again presuming the participation of the Nicaraguan government,
that would still not constitute an armed attack. It might have been illegal intervention, it might
have been use of force, but it wasn‘t an armed attack for self-defense purposes.
It may be an armed attack when you send in armed bands or mercenaries to stage an attack, but
only if you sent them in such a way that their actions were directed and controlled by you.
Merely giving them the arms and the cash and the training isn‘t enough. It may still be illegal,
but it isn‘t use of force. To make an armed response in self-defense under Article 51, you must
state that you are under an armed attack. You must immediately report this fact to the Security
Council. And you must also promptly report your own actions in response.
Here, none of these states announced that they were victims of armed attacks. Nobody ever
asked the United States to come help them. Nobody ever told the U.N. they were under attack.
The United States did not obey international law here. We have learned our lesson, too. So when
Iraq invaded Kuwait, Kuwait and Saudi Arabia begged us to intervene, and we said ―put it in
writing first.‖ An immediate record was established before the Security Council.
Nicaragua claimed that it was the victim of ―indirect aggression‖ (namely, the embargo, our
support of the Contras, and our military maneuvers in Honduras). The ICJ held that the
maneuvers were not use of force. Neither the embargo nor giving money to the Contras were
uses of force. Supplying weapons might have been use of force, however, but economic
measures of intervention were not a violation of international law. If you don‘t want to trade
with someone, that‘s fine. Now . . . prohibiting other countries from trading with a state might be
a problem.
NECESSITY AND PROPORTIONALITY

Even presuming that Nicaragua engaged in armed attacks on Honduras and Costa Rica, that we
were formally invited down there, and that we had notified the U.N., Honduras has nevertheless
already crushed the rebellion a year or so earlier. There was no necessity. If you say you‘re using
force against another country, no matter what the reason, the use of force must be necessary. Ask
this for every particular act. If a particular act was not necessary, then it was illegal. No
necessity, so the United States had failed to abide by this standard, as well.
All uses of force must be proportional.

Iraqi gunners are shooting at you. You need to destroy them. To do so, you do not take out a
dam upriver and drown a million people. This is not a new standard. It‘s been around at least
since the Caroline case, and even it said this is nothing new.

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It‘s always when we do things halfway that Americans get killed. Like in Somalia, where we
took out most of our forces and left just a few there to make the political statement that we‘re
still there, without enough armor and support to protect those who were there. As has been noted
by the terrorists themselves, the American habit of pulling out emboldened Al Qaeda and others
to more numerous and harmful attacks on American interests, culminating in 9/11. It‘s the half-
hearted stuff, the warm fuzzy idea that sending Americans somewhere will somehow make
things better that gets people killed. During the period from 1979 through the late 1990s, the US
had about 500 KIA. (During that same time, there were about 15,000 American soldiers killed in
all, from jeeps turning over to any other reason.)
Manuel Noriega made a big mistake by declaring war on the United States.
Had he not declared war, lot of mistakes would have been avoided. George Bush sent a
communication to the Speaker of the House detailing the justification for the invasion of
Panama: On December 15, 1989, at the instigation of Manuel Noriega, the illegitimate
Panamanian National Assembly declared that a state of war existed between the Republic of
Panama and the United States. At the same time, Noriega gave a highly inflammatory anti-
American speech. A series of vicious and brutal acts directed at U.S. personnel and dependents
followed these events.
On December 16, 1989, a U.S. Marine officer was killed without justification by Panama
Defense Forces (PDF) personnel. Other elements of the PDF beat a U.S. Naval officer and
unlawfully detained, physically abused, and threatened the officer‘s wife. These acts of violence
are directly attributable to Noriega‘s dictatorship, which created a climate of aggression that
places American lives and interests in peril. These and other events over the past two years have
made it clear that the lives and welfare of American citizens in Panama were increasingly at risk
and that the continued safe operation of the Panama Canal and the integrity of the Canal Treaties
would be in serious jeopardy if such lawlessness were allowed to continue. [. . .] The deployment
of U.S. Forces is an exercise of the right of self-defense recognized in Article 51 of the United
Nations Charter and was necessary to protect American lives in imminent danger and to fulfill
our responsibilities under the Panama Canal Treaties. [. . .] We did not actually invoke self-
defense, however. We rarely do so under Article 51. The only times we‘ve done so were in the
Nicaragua case, which we lost, and the bombing of Libya.
WAR POWERS RESOLUTION

This is still law. This resolution governs the commitment of U.S. forces to any activity, be it the
use of force, or just international peacekeeping.
Need of Declaration of War by the U.S. Congress

Specific statutes authorizing the use of our forces. Actual national emergency created by an
attack on U.S. territory or on our armed forces. Before 9/11, none of these things had happened.

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So how did the U.S. do everything it did? § 1543 — The President has to submit a report within
48 hours of action. If President doesn‘t withdraw first, then he has 60 days to get Congress‘
consent or else he must then withdraw the forces. § 1544(b). Only have to leave after 60 days,
and the 60-day period doesn‘t start to run until the letter is sent to Congress, and the letter isn‘t
always required. The letter always comes within 48 hours, but it also always says the report is
―consistent‖ with the W.P.R, not that it is ―in compliance‖ with it. Bush did ask for
Congressional support of the intervention against Iraq in 1991, because we were facing a battle-
hardened army, the fourth-largest in the world, with mint-condition Soviet equipment. The
tension between Congress and the President on declaring war is a healthy tension. War is the last
thing you want to get involved in.
COLLECTIVE USE OF FORCE IN PROGRESS...TO BE COMPLETED
But Tito, a Croat, didn‘t like the Serbs. So the borders were crazy, with the Serbs scattered all
over and a hodgepodge of peoples everywhere. For a brief period after independence, the border
agreement was there, but then the ethnic cleansing began. The result was three increasingly
purged states. Nobody enforced the original plan of regulating the borders, and resulting in the
Dayton accord with different borders based on the intervening battles.
Visitors to Saudi Arabia in the 1970s and 80s, for example, were repeatedly warned never to
report a crime, because you would be jailed until the culprit was caught and convicted.
IRAQ WAR: LEGALITY OF WAR UNDER INTERNATIONAL LAW

Fact of the Iraq case
After months of trying to rally international support for a war and a two-day ultimatum
demanding that Iraqi President Saddam Hussein step down, the United States attacked Iraq on
March 19, 2003. The goal, U.S. President George W. Bush said in a speech, was "to disarm Iraq,
to free its people and to defend the world from grave danger."
Experts disagree as to whether the war was legal under international law. Under Chapter VII of
the United Nations Charter, to which the United States is a party, a nation's use of force is
authorized under only two circumstances: in individual or collective self-defense, as outlined in
Article 51, or pursuant to a Security Council resolution, as outlined in Article 42.
Self Defense
Since it was not directly attacked by Iraq the United States did not have an obvious right to self-
defense. The administration, though, argued that it had a right to defend itself pre-emptively
against a future possible attack. In his speech to the United Nations on September 12, 2002,
President Bush described Saddam Hussein's regime as "a grave and gathering danger," detailed

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that regime's persistent efforts to acquire weapons of mass destruction, and spoke of an "outlaw
regime" providing such weapons to terrorists.121
While arguing for pre-emption, the administration also suggested that the United States had a
right to self-defense on the grounds that the Iraqi regime was connected to Al Qaeda, the
organization responsible for the attacks on the United States of September 11, 2001. In February
2003, Secretary of State Colin Powell told the United Nations Security Council that Iraq was
harbouring a terrorist cell led by Abu Musab Zarqawi, a suspected associate of Al Qaeda. Powell
also said that senior Iraqi and Al Qaeda leaders had met at least eight times since the early 1990s.
Ansar al-Islam, an Islamist militia group, was also suspected of ties to Al Qaeda, and was based
in a lawless part of northeast Iraq, though it was not known to have cooperated with Saddam
Hussein. 122
The Security Council

The 15-member United Nations Security Council did not authorize the March 19, 2003 attack on
Iraq. It unanimously passed Resolution 1441 on November 8, 2002, calling for new inspections
intended to find and eliminate Iraq's weapons of mass destruction. (The Arms Control
Association provides a chronology of previous weapons inspections in Iraq.) Iraq accepted the
renewed inspections, which were to be carried out by UNMOVIC and the IAEA. Under the
terms of the resolution, if Iraq obstructed their work, the chief inspectors were to report promptly
back to the Security Council, which would "convene immediately" to consider the situation and
"the need for full compliance." The resolution also threatened "serious consequences" if Iraq
failed to comply.
The United States, backed by Britain and Spain, began to seek a second U.N. resolution to
declare Iraq in material breach of its obligation to disarm. Veto-wielding permanent members
France, Russia and China, as well as a number of other members, preferred to give inspectors
more time on the premise that inspections were working. Up against a deeply divided Council,
the U.S. pulled its proposal on March 17.
The U.S. administration argued that it had enough legal support for its subsequent military
action, based on resolution 1441 as well as two previous Security Council resolutions: 678,
which in 1990 authorized the U.N. to take military action against Iraq, and 687, which set the
terms of the cease-fire at the end of the 1991 Gulf War. Administration lawyers said that because
Iraq never lived up to the terms of the cease-fire, the use force was now valid.
121
For an extensive discussion of international law and the pre-emptive use of force, See the Congressional
Research Service's Report for Congress of September 23, 2002.
122
For more information on Iraq and the use of terrorism, see Iraqi Ties to Terrorism from the Council on Foreign
Relations

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In answer to a question in parliament, Great Britain‘s Attorney General Lord Goldsmith issued a
March 17th statement supporting the use of force against Iraq. The Australian Attorney
General‘s Department issued a memorandum on March 18th, also supporting the use of force
against Iraq.
Other Legal Issues

Nations at war are required to follow the law of war, also known as international humanitarian
law. Based on the Geneva Conventions of 1949 as well as customary international law, the law
of war regulates military operations in an attempt to protect civilians from the devastation of
war.123
DOCUMENTS
 Charter of the United Nations. Chapter VII, Article 42 states that if peaceful means have
not succeeded in obtaining adherence to Security Council decisions, the Security Council
may take such action by air, sea or land forces as may be necessary to maintain or restore
international peace and security. Chapter VII, Article 51 allows for states to use force in
self-defense.
 Geneva Conventions and Additional Protocols. Parts of the Conventions are also
available here.
 The National Security Strategy of the United States of America
 U.N. Security Council Resolution 678 adopted November 29, 1990, authorizing the U.N.
to take military action against Iraq.
 U.N. Security Council Resolution 687 adopted April 3, 1991, setting the terms of the
cease-fire at the end of the 1991 Gulf War.
 U.N. Security Council Resolution 1284 adopted December 17, 1999, establishing
UNMOVIC.
 U.N. Security Council Resolution 1441 adopted November 8, 2002, calling for renewed
weapons inspections.
 Iraq's letter to the United Nations of November 13, 2002, accepting renewed arms
inspections.
 United States Code Title 50, Chapter 33, the War Powers Resolution.
 U.S. House Joint Resolution signed October 16, 2002, authorizing the president to attack
Iraq.
 British Attorney General Lord Goldsmith‘s March 17th statement supporting the use of
force against Iraq. This statement is also available here.
 The Australian Attorney General‘s March 18th memorandum supporting the use of force
against Iraq.
123
The Centre for Defense Information and Human Rights Watch both offer useful discussions of humanitarian law.

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ARTICLES AND COMMENTARY

1. David M. Ackerman, International Law and the Preemptive Use of Force Against Iraq,
Congressional Research Service Report for Congress, (September 23, 2002).
2. David M. Ackerman, Response to Terrorism: Legal Aspects of the Use of Military Force,
Congressional Research Service, (September 13, 2001).
3. Thomas M. Franck, When, If Ever, May States Deploy Military Force Without Prior
Security Council Authorization? 5 Wash. U. J.L. & Pol'y 51 (2001).
4. Gavan Griffith, Notes on the Legal Justification for the Invasion of Iraq and Security
Council Resolutions 678 and 1441, Sydney Morning Herald, (March 21, 2003).
5. Richard F. Grimmett, U.S. Use of Preemptive Military Force, Congressional Research
Service Report for Congress, (September 18, 2002).
6. Devika Hovell and George Williams, Nowhere to Hide Behind the Letter of the Law
(Sydney Morning Herald, March 19, 2003).
7. International Humanitarian Law Issues in a Potential War With Iraq, Human Rights
Watch, (February 20, 2003).
8. Iraq: Questions Regarding the Laws of War, Center for Defense Information �
Terrorism Project, (March 18, 2003).
9. Ali Khan, Above and Beyond International Law: George W. Bush as the Austinian
Sovereign, JURIST University of Pittsburgh School of Law, (March 31, 2003).
10. Michael Kelly, Could the New International Criminal Court try Americans for War
Crimes in Iraq?, JURIST University of Pittsburgh School of Law, (March 17, 2003).
11. Frederic L. Kirgis, Armed Force in Iraq, ASIL Insights, (March 18, 2003).
12. Lawrence J. Lee, Mark R. Shulman et al., The Legality and Constitutionality of the
President‘s Authority to Initiate an Invasion of Iraq, 41 Colum. J. Transnat'l L. 15,
(2002).
13. Mary Ellen O'Connell, The Myth of Preemptive Self-Defense, The American Society of
International Law Task Force on Terrorism, (August 2002).
14. The United Nations Charter and the Use of Force Against Iraq, Lawyers Committee on
Nuclear Policy, (October 2, 2002).
15. Columbia International Affairs Online Special Section on U.S. Policy and Iraq
16. Crimes of War Project‘s The War in Iraq

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CHAPTER 16
INTERNATIONAL CRIMINAL LAW
(A) What Is International Criminal Law

(B) Reparation for the Breach of an International Obligation
(C) International Procedures to Implement Obligation reparation
(D) Remedies of Private persons in Domestic Court for Violation of International Law
(A) WHAT IS INTERNATIONAL CRIMINAL LAW?

International criminal law is a body of laws, norms, and rules governing international crimes and
their repression, as well as rules addressing conflict and cooperation between national criminal-
law systems. Criminal law prohibits and punishes behavior judged to be antisocial. International
criminal law is a body of international law designed to prohibit certain categories of conduct
commonly viewed as serious atrocities and to make perpetrators of such conduct criminally
accountable for their perpetration. Principally, it deals with genocide, war crimes, and crimes
against humanity as well as the War of aggression. This article also discusses crimes against
international law, which may not be part of the body of international criminal law. Because each
country's laws are a reflection of its values, there are often large differences between the national
laws of different countries, both with respect to the nature of the crimes themselves and the
penalties considered appropriate.
The term international criminal law refers variously to at least three distinct areas:
 cooperation between different national legal systems through extradition and other forms of
mutual legal assistance;
 the prohibition and punishment of certain behaviour by several countries acting collectively
or by the international community as a whole; and
 The operation of autonomous international legal systems, including courts and other
mechanisms of enforcement, that exists alongside national criminal law.
"Classical" international law governs the relationships, rights, and responsibilities of states.
Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for
violation of those prohibition imposed by individual states. International criminal law comprises
elements of both in that although its sources are those of international law, its consequences are
penal sanctions imposed on individuals.
(B) IMPORTANCE OF PROSECUTING INTERNATIONAL CRIMES

The prosecution of severe international crimes—including as genocide, crimes against humanity,
and war crimes—is a necessary to enforce international criminal law and deliver justice to
victims. This is an important component of transitional justice, or the process of transforming
societies into rights-respecting democracies and addressing past human rights violations.

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Investigations and trials of leaders who have committed crimes and caused mass political or
military atrocities is a key demand of victims of human rights abuses. Prosecution of such
criminals can play a key role in restoring dignity to victims, and restoring trusting relationships
in society.124 The International Criminal Court, as described below, can play an important role in
prosecuting international crimes in cases where domestic courts are unwilling or unable to do so.
(C) ROLE OF STATE IN ENFORCEMENT OF NORMS INTERNATIONAL

CRIMINAL LAW
To facilitate the enforcement of their domestic criminal laws, national governments cooperate
with each other in the transfer of offenders from one jurisdiction to another and in a number of
other ways relating to the investigation of crimes and the gathering and production of evidence.
Extradition is governed essentially by a complex web of bilateral treaties by which states agree
to the rendition of fugitives from other jurisdictions so that they can stand trial in the country
where the crime took place or, in exceptional cases, where there are other jurisdictional links,
such as the nationality of the offender or of the victim.
Although bilateral extradition treaties vary somewhat, there is a body of generally applicable
rules. States usually agree upon a list of serious crimes for which extradition may be authorized
and upon a requirement that such crimes be recognized as criminal in both the sending and the
requesting state. Extradition is permitted for a specific crime described in an extradition request.
Under the rule of specialty, a requesting state may try a suspect only for the crimes for which the
suspect was extradited, unless this protection is waived by the sending state. Extradition may be
refused in cases where the crime is deemed to be a political offense, though there is greater
willingness to grant extradition on this basis when politically motivated crimes involve violence
directed against innocent targets. Political crimes involving expression and opinion are often
prosecuted as sedition or treason. Beginning in the late 20th century, governments increasingly
refused to extradite persons accused of capital crimes unless assured that capital punishment
would not be imposed should the fugitive be convicted.
(D) SOURCES OF INTERNATIONAL CRIMINAL LAW

International criminal law is a subset of international law. As such, its sources are the same as
those that comprise international law. The classical enumeration of those sources is in Article
38(1) of the 1946 Statute of the International Court of Justice comprises: treaties, customary
international law, general principles of law (and as subsidiary measure judicial decisions and the
most highly qualified juristic writings.) The ICC statute contains an analogous, though not
identical, set of sources that the ICC may rely on.
124
"Criminal Justice", International Centre for Transitional Justice

216
(E) HISTORY OF INTERNATIONAL CRIMINAL LAW & COURTS

First World War
Some precedents in international criminal law can be found in the time before the First World
War. However, it was only after the war that a truly international criminal tribunal was envisaged
to try perpetrators of crimes committed in this period. In 1919 the Treaty of Versailles
contemplated the establishment of an international court to prosecute German Emperor William
II ―for a supreme offense against international morality and the sanctity of treaties.‖ The court
was never set up, however, because William obtained asylum in a neutral country, The
Netherlands.
Second World War
The victorious allies at the close of World War II were more successful, establishing by treaty
the tribunal at Nürnberg that to try not only war crimes, but crimes against humanity committed
under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced
judgments on 30 September / 1 October 1946. In all, some 22 leading Nazis were tried by a court
composed of eight judges (four judges rendered the verdicts, and four served as alternates), two
each from the United States, the United Kingdom, France, and the Soviet Union.
A similar tribunal was established for Japanese war crimes called as Tokyo Trial (The
International Military Tribunal for the Far East). It operated from 1946 to 1948.
Critics of the Nürnberg trials, and of a similar prosecution held in Tokyo, have viewed them as
―victor's justice,‖ particularly because the tribunals never considered war crimes committed by
their own soldiers, though in at least one case, concerning submarine warfare, the argument that
illegal acts had also been committed by the other side was accepted as a defense. Despite such
flaws, the tribunals represented a great achievement for those who desired an international
system that would prosecute heinous offenses committed during war.
Post-World War II Developments

In 1948 the UN General Assembly assigned the task of preparing a statute for an international
criminal court to the International Law Commission; three years later the commission submitted
a draft statute, but consideration of the proposal was postponed. The issue was revisited
periodically, and in 1989 the General Assembly invited the commission to resume its efforts,
which became more urgent following the atrocities committed in the former Yugoslavia and in
Rwanda and the establishment of international criminal tribunals to prosecute individuals
responsible for acts of genocide and ethnic cleansing in those countries. After the beginning of
the war in Bosnia, the United Nations Security Council established the International Criminal
Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in Rwanda, the
International Criminal Tribunal for Rwanda in 1994.

217
The International Law Commission had commenced preparatory work for the establishment of a
permanent International Criminal Court in 1993. The eventual draft, as modified by subsequent
General Assembly committees, was submitted to a diplomatic conference (formally the United
Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court) held in Rome in June–July 1998. The treaty is now known as the "Rome Statute
of the International Court" which at the close of the conference, was signed by nearly 140
countries. After many years of lobbying, drafting, and politicking, the Treaty establishing an
International Criminal Court was signed in July, 1998. It came into force on July 1, 2002, after it
had been ratified by the requisite 60 countries.
(F) INTERNATIONAL CRIMINAL COURT AT THE HAGUE
Establishment of the ICC

The International Criminal Court (commonly referred to as the ICC or ICCt) 125 is a permanent
tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the
crime of aggression (although it cannot currently exercise jurisdiction over the crime of
aggression).126 The court's official seat is in The Hague, Netherlands, but its proceedings may
take place anywhere.127 The court's creation perhaps constitutes the most significant reform of
international law since 1945. It gives authority to the two bodies of international law that deal
with treatment of individuals: human rights and humanitarian law.
Composition of the court

The ICC consists of 18 judges elected by the Assembly of States Parties to the Rome Statute; the
judges are divided into Pre-Trial, Trial, and Appeals divisions, each of which is further sub-
divided into chambers. Cases are initiated by a prosecutor who is elected by the Assembly of
States Parties. The prosecutor may also act at the request of the UN Security Council or at the
request of a government that has ratified the statute.
Present Status of the ICC

ICC came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the
International Criminal Court, entered into force128—and it can only prosecute crimes committed
on or after that date.129 Nevertheless, the failure of the United States, Russia, China, and several
other major countries to join the ICC has compromised its effectiveness. As of December 2011,
120 states are states parties to the Statute of the Court, including all of South America, nearly all
125
International Criminal Court is sometimes abbreviated as ICCt to distinguish it from several other organisations
abbreviated as ICC. However, the more common abbreviation ICC is used in this article.
126
Article 5 of the Rome Statute
127
128
Amnesty International (11 April 2002). "The International Criminal Court – A Historic Development in the Fight
for Justice". Retrieved 20 March 2008.
129

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of Europe and roughly half the countries in Africa.130 The United States participated in the
negotiations and drafting, but did not sign it because of serious objections within the government
to certain elements of its jurisdiction and procedure. A further 32 countries, including Russia,
have signed but not ratified the Rome Statute; one of them, Côte d'Ivoire, has accepted the
Court's jurisdiction. The law of treaties obliges these states to refrain from ―acts which would
defeat the object and purpose‖ of the treaty (Vienna Convention on the Law of Treaties 1969,
Article 18).
Three of these states—Israel, Sudan and the United States—have "unsigned" the Rome Statute,
indicating that they no longer intend to become states parties and, as such, they have no legal
obligations arising from their former representatives' signature of the Statute.131 42 United
Nations member states have neither signed nor ratified or acceded to the Rome Statute; some of
them, including China and India, are critical of the Court.132 The Palestinian National Authority,
which neither is nor represents a United Nations member state, has formally accepted the
jurisdiction of the Court. It is unclear, however, if this acceptance is legally valid.133
Jurisdiction of ICC
The ICC, which is based in The Hague, is authorized to prosecute war crimes, crimes against
humanity, and acts of genocide that are committed in the territory, or by a national, of a state that
has ratified the Rome Statute. Prosecution may exceed these jurisdictional limits when
authorized by the Security Council. The court recognizes the primacy of national criminal
jurisdictions and, acting as a court of last resort, can proceed with a case only after it has
determined that domestic courts are either unable or unwilling to prosecute.
The court can generally exercise jurisdiction only in cases where the accused is a national of a
state party, the alleged crime took place on the territory of a state party, or a situation is referred
to the court by the United Nations Security Council.134 It is designed to complement existing
national judicial systems: it can exercise its jurisdiction only when national courts are unwilling
or unable to investigate or prosecute such crimes.135 Primary responsibility to investigate and
punish crimes is therefore left to individual states.136 The ICC issued its first arrest warrants in
2005. To date, the Court has opened investigations into seven situations in Africa:
1. the Democratic Republic of the Congo;
130
UN Treaty Database entry regarding the Rome Statute of ICC. Retrieved 10-3- 2010 The Statute will enter into
force for its 119th state party, Cape Verde, on 1 January 2012 and its 120th, Vanuatu, on 1 February 2012
131
John R Bolton, 6 May 2002. International Criminal Court: Letter to UN Secretary General Kofi Annan. US
Department of State. Accessed 23 November 2006
132
China's Attitude Towards the ICC‖, Lu Jianping and Wang Zhixiang, Journal of International Criminal Justice,
2005-07-06. India and the ICC, Usha Ramanathan, Journal of International Criminal Law, 2005.
133
Simons, Marlise (2009-02-10). "War court asked to examine Gaza war". The New York Times. Retrieved 2011-
04-06.
134
Articles 12 & 13 of the Rome Statute
135
136
International Criminal Court. Office of the Prosecutor. Accessed 21 July 2007.

219
2. Uganda;
3. the Central African Republic;
4. Darfur, Sudan;
5. the Republic of Kenya;
6. the Libyan Arab Jamahiriya and
7. The Republic of Côte d'Ivoire.137
Of these seven, three were referred to the Court by the states parties (Uganda, Democratic
Republic of the Congo and the Central African Republic), two were referred by the United
Nations Security Council (Darfur and Libya) and two were begun proprio motu by the
Prosecutor (Kenya and Côte d'Ivoire).
It publicly indicted 27 people, proceedings against 23138 of whom are ongoing. The ICC has
issued arrest warrants for 18 individuals and summonses to nine others. Six individuals are in
custody (the release of one has been ordered) and are being tried while eight individuals remain
at large as fugitives (although one is reported to have died). Additionally, two individuals have
been arrested by national authorities, but have not yet been transferred to the Court; the national
authorities have indicated to be willing to try the suspects themselves. The Prosecutor has
furthermore requested a warrant of arrest to be issued against one person in the situation of
Darfur, Sudan. Proceedings against three individuals have finished following the death of two
and the dismissal of charges against the other. The charges against a second suspect were
dismissed; the Prosecutor seeks leave to appeal that decision.
As of March 2011, three trials against four people are underway: two trials regarding the
situation in the Democratic Republic of the Congo and one trial regarding the Central African
Republic. Another two people have been committed to a fourth trial in the situation of Darfur,
Sudan. One confirmation of charges hearing (against one person in the situation of the DR
Congo) is to start in July 2011 while two new cases (against a total of six persons in the situation
of Kenya) will begin with the suspects' first appearances in April 2011.
Universal Jurisdiction and Prosecution in ICC

When ordinary crimes cross the threshold become international crimes, important consequences
ensue. Most significantly, general legal rules on the exercise of jurisdiction no longer apply.
Under international law, a national criminal-justice system may prosecute crimes committed
within the state's own territory or by its nationals but not, as a general rule, crimes committed
outside its borders by non-nationals. This rule, however, has been relaxed in the case of war
crimes, crimes against humanity, and genocide. Under what is known as universal jurisdiction,
national courts may prosecute these offenses no matter where or by whom they are committed.
137
ICC press release on Pre-Trial Chamber III authorizing the investigation. Retrieved 3 October 2011.
138
The number of 23 does not include Callixte Mbarushimana. Pre-Trial Chamber I declined to confirm the charges
against him and ordered his release. The Prosecutor's application for the stay of Mbarushimana's release order was
rejected. As the non-confirmation of charges stands at the time being, Mbarushimana is excluded here.

220
Indeed, in the 1990s Belgium adopted controversial legislation that granted its courts the
authority to try anyone—even the leaders of other countries—for such offenses. In 2001 the
International Court of Justice ruled that the Belgian legislation was invalid because it wrongly
assumed that Belgian courts can try foreign heads of state or other senior officials while they are
still in office. Following the judgment, and under pressure from states that threatened to prohibit
official travel to Belgium, the Belgian government modified the legislation. In the case of grave
breaches of the Geneva Conventions and the crime of torture, international treaties make
prosecution not only a right but a duty. Under the principle known as aut dedere aut judicare
(Latin: ―either adjudicate or extradite‖), national governments must either try offenders or
extradite them to a country that is prepared to do so. The ―try or extradite‖ principle can also be
found in treaties dealing with terrorism, counterfeiting, and the theft of nuclear materials.
Special rules apply to the arguments an accused may raise in defense of his actions. Although a
head of state may benefit from immunity under national law, he cannot invoke this defense in the
case of war crimes, crimes against humanity, and genocide. He may, however, plead immunity
from prosecution by other states for crimes committed while he was in office, as long as they
were not committed in a private context. Nevertheless, heads of state have no such immunity
before international courts or tribunals. In addition, statutory limitations, a common bar to
prosecution many years after a crime has taken place in many national legal systems, are
excluded by both treaty and customary law for war crimes, crimes against humanity, and
genocide.
Individuals also may not argue in their defense that they were acting under the orders of a
superior, though this is permitted for soldiers and officers of the peace in most national legal
systems. Although subordinates cannot be exonerated in such circumstances, international
criminal law focuses its attention primarily on commanders. Those with superior authority be
they military or civilian, may be found guilty of war crimes, crimes against humanity, and
genocide when they are committed by those under their command, even when there is no
evidence that they actually ordered the commission of the crime.
Procedure of the court

The ICC depends upon national justice systems to carry out investigations and to arrest and
transfer suspects. Its procedural regime is a hybrid of the common-law adversarial model and the
inquisitorial approach of civil-law systems such as those of continental Europe. Following the
common-law model, prosecutions at the ICC are directed by an independent prosecutor rather
than by an investigating judge, as would be the practice under civil-law systems. As in civil-law
systems, however, the ICC prosecutor is given special responsibilities to ensure that the rights
and interests of the defendant are secured. Moreover, the ICC prosecutor is subject to close
judicial scrutiny by the Pre-Trial Chamber, something that would not generally be the case in a

221
common-law system. Those convicted by the ICC receive sentences of up to life imprisonment
and serve their terms in national prisons.
(G) CATEGORIES OF INTERNATIONAL CRIME
Categories of International Crime under customary and treaty law

Certain crimes are international by their nature. They may be carried out in more than one
country, in which case they are considered trans-border crimes, or they may be committed in
international zones such as the high seas or international airspace. Efforts to repress such crimes
become internationalized out of necessity, reflecting the practicalities of preventing acts that
sometimes easily elude national jurisdictions. Crimes such as trafficking in persons, participating
in the slave trade, and committing various terrorist offenses, such as piracy and airplane
hijacking, are governed by both international treaties and customary legal obligations.
Crimes committed by national governments—or rather by the individuals who control and direct
them—are at the core of international criminal law. The victims of such crimes are sometimes
the nationals of other states (e.g., civilians in an occupied territory during an armed conflict), but
more often they are the criminal state's own citizens. In this context, international criminal law
overlaps considerably with human rights law, the former attributing blame to individuals mainly
in order to impose punishment, the latter blaming the state and seeking some form of redress or
compensation.
Categories of International Crime under Nuremberg Tribunal

The first modern international criminal tribunal was held at Nurnberg, Germany, following
World War II to try military and civilian leaders of Nazi Germany. (A similar tribunal was
established at Tokyo to try alleged Japanese war criminals.) The Nurnberg trials (1945–46)
prosecuted three categories of offenses: crimes against peace, war crimes, and crimes against
humanity. The definitions of the crimes were narrowly crafted and applied only to acts
committed in association with international war.
Categories of International Crime under Rome Statute

More than half a century later, the Rome Statute of the International Criminal Court (ICC; 1998)
targeted the same three kinds of crime (i) crimes against peace, (ii) war crimes, and (iii) crimes
against humanity and added (iv) the crime of genocide. During the second half of the 20th
century, the definitions of the crimes that were prosecuted at Nurnberg evolved considerably, so
that they came to cover offenses committed in peacetime or in civil wars.
(1) Crimes against Peace

Crimes against peace consist of acts of aggressive war. Although aggression was defined in a
United Nations (UN) General Assembly resolution (1974) as ―the use of armed force by a State

222
against the sovereignty, territorial integrity or political independence of another State, or in any
other manner inconsistent with the Charter of the United Nations,‖ the question of how to assign
individual responsibility for acts of aggression committed by states remains unresolved.
Although the ICC has jurisdiction over the crime of aggression, it cannot exercise its authority
until there is agreement both on a definition of aggression suitable for individual criminal
prosecutions and on the role that the UN Security Council should play in determining when
aggression has taken place. Such an agreement has proved elusive, however. There have been no
prosecutions for crimes against peace or for aggression since the post-World War II trials.
Virtually no national jurisdictions have introduced this category of crime into domestic legal
codes, in contrast to the widespread acceptance of national laws against genocide, crimes against
humanity, and war crimes. Moreover, the two ad hoc criminal tribunals established by the UN
Security Council for the former Yugoslavia and for Rwanda were given jurisdiction to punish
genocide, crimes against humanity, and war crimes but not aggression.
(2) War Crimes

The concept of war crimes refers to a range of acts judged to be beyond civilized human
behaviour, even in the extreme conditions of warfare. The acts defined as war crimes concern
both the methods and the materials of warfare (e.g., the use of certain weapons that cause
unnecessary suffering or the targeting of noncombatants). At Nürnberg the defendants argued
that, whereas states might have culpability for violations of the laws and customs of war,
individuals could not be singled out for criminal prosecution. Nevertheless, the judges held that
―crimes against international law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of international law be
enforced.‖ Although individuals can be held responsible for most kinds of international crimes,
such crimes are almost never committed without the involvement of states or of rebel
organizations striving to take power. At the beginning of the 21st century, the question of
whether states themselves can commit international crimes remained a controversial issue.
In 1949 a narrow list of war crimes committed during international armed conflict, known as
grave breaches, was approved in four Geneva Conventions. When the Geneva Conventions were
revised with additional protocols in 1977, attempts to expand the concept of grave breaches to
include acts committed in non-international, or civil, war did not succeed. States have always
been more willing to accept a role for international norms and standards during international, or
interstate, wars than during civil wars. Nevertheless, by the mid-1990s international views had
evolved, partly because of the influence of the international human rights movement and partly
because of outrage at the scale of the atrocities committed in the early 1990s in the essentially
civil conflicts in the former Yugoslavia and in Rwanda. As evidence of this development in
international law, the Rome Statute of the International Criminal Court recognized a broad range
of war crimes committed during internal armed conflict.

223
(3) Crimes against Humanity

Although those who prepared the post-World War II prosecutions initially believed that atrocities
committed against civilians within Germany fell outside the scope of international law, the
Nurnberg tribunal was empowered to prosecute such acts under the rubric of crimes against
humanity—a concept that previously had not existed in international law. At about the same
time, the closely related concept of genocide was developed to describe acts aimed at the
physical destruction, in whole or in part, of ethnic, racial, national, or religious groups. The
crime of genocide was defined in the Convention on the Prevention and Punishment of the Crime
of Genocide (1948). Although crimes against humanity were prosecuted at Nurnberg, a widely
accepted definition of this term eluded international law until the adoption of the Rome Statute in
1998. Crimes against humanity consist of a variety of acts, such as murder, torture, enforced
disappearance, apartheid, and rape, committed as part of a widespread or systematic attack on a
civilian population.
(4) Crime of Genocide

In a general sense, war crimes, crimes against humanity and genocide all consist of acts, such as
murder and rape, which are criminal under national law. What sets them apart as international
crimes is the context in which the act is committed, be it an international or internal armed
conflict (war crime), an attack on a civilian population (crime against humanity), or the
intentional destruction of an ethnic, racial, national, or religious group (genocide). For a
prosecution to succeed, it must be established both that the underlying criminal act occurred
(e.g., the killing of individuals) and that one of these contextual elements was present.
(H) OTHER INSTITUTIONS OF INTERNATIONAL CRIMINAL LAWN

Today, the most important institution is the International Criminal Court (ICC), as well as
several ad hoc tribunals such as (a) International Criminal Tribunal for the former Yugoslavia,
(b) International Criminal Tribunal for Rwanda. Apart from these institutions, some 'hybrid'
courts and tribunals exist—judicial bodies with both international and national judges. They are:
(c) Special Court for Sierra Leone, (investigating the crimes committed the Sierra Leone Civil
War), (d) Extraordinary Chambers in the Courts of Cambodia, (investigating the crimes of the
Red Khmer era), (e) Special Tribunal for Lebanon, (investigating the assassination of Rafik
Hariri) and (f) The War Crimes Court at Kosovo. We may discussion some of them in short,
which are follows;
(a) International Criminal Tribunal for the former Yugoslavia

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991, more commonly referred to as the International Criminal Tribunal for the former
Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes
committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is

224
an ad hoc court which is located in The Hague, the Netherlands. The Court was established by
Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It
has jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia
since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of war,
genocide, and crime against humanity. The maximum sentence it can impose is life
imprisonment. Various countries have signed agreements with the UN to carry out custodial
sentences. The last indictment was issued 15 March 2004. The Tribunal aims to complete all
trials by the middle of 2011 and all appeals by 2013, with the exception of Radovan Karadžić
whose trial is expected to end in 2012 and the appeal to be heard by February 2014. 139 Goran
Hadžić has been charged; however is still at large and thus do not fall within the court's
completion strategy.140
On 1 July 2013, an International Residual Mechanism for Criminal Tribunals will begin
functioning with respect to the work begun by the ICTY. The ICTY has been called upon by the
United Nations Security Council to finish its work by 31 December 2014 and to prepare its
closure and transition of cases to the Mechanism.
(b) International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR), or the Tribunal pénal international pour
le Rwanda (TPIR), is an international court established in November 1994 by the United Nations
Security Council in Resolution 955 in order to judge people responsible for the Rwandan
Genocide and other serious violations of the international law in Rwanda, or by Rwandan
citizens in nearby states, between 1 January and 31 December 1994.141 In 1995 it became located
in Arusha, Tanzania, under Resolution 977.142 (From 2006, Arusha also became the location of
the African Court on Human and Peoples' Rights). In 1998 the operation of the Tribunal was
expanded in Resolution 1165.143 Through several resolutions, the Security Council called on the
Tribunal to complete its investigations by end of 2004, complete all trial activities by end of
2008, and complete all work in 2012.144
The tribunal has jurisdiction over genocide, crimes against humanity and war crimes, which are
defined as violations of Common Article Three and Additional Protocol II of the Geneva
Conventions (dealing with war crimes committed during internal conflicts). So far, the Tribunal
has finished 50 trials and convicted 29 accused persons. Another 11 trials are in progress. 14
individuals are awaiting trial in detention; but the prosecutor intends to transfer 5 to national
139
Completion Strategy
140
Article 5 of the Rome Statute Accessed 20 March 2008
141
UN Security Council Resolution 955 S-RES-955(1994) on 8 Nov 1994 (retrieved 2008-07-23)
142
UN Security Council Resolution 977 S-RES-977(1995) on 22 Feb 1995 (retrieved 2008-07-23)
143
UN Security Council Resolution 1165 S-RES-1165(1998) on 30 Apr 1998 (retrieved 2008-07-23)
144
UN Security Council Resolution 1824 S-RES-1824(2008) p1, 18 Jul 2008 (retrieved 2008-07-23)

225
jurisdiction for trial. 13 others are still at large, some suspected to be dead145. The first trial, of
Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty.
According to the ICTR's Completion Strategy, in accordance with Security Council Resolution
1503, all first-instance cases were to have completed trial by the end of 2008 (this date was later
extended to the end of 2009)146
On 1 July 2012, an International Residual Mechanism for Criminal Tribunals will begin
functioning with respect to the work begun by the ICTR. The ICTR has been called upon by the
United Nations Security Council to finish its work by 31 December 2014 and to prepare its
closure and transition of cases to the Mechanism.
(I) RECOGNITION OF INTERNATIONAL CRIMINAL LAW IN DOMESTIC

JURISDICTIONS
UNITED KINGDOM
Jurisdiction
Under section 51(1) of the International Criminal Court Act 2001, genocide and crimes against
humanity committed either in the United Kingdom or by United Kingdom nationals abroad can
be prosecuted but, as a dualist nation, other prosecutions can only be mounted where the United
Kingdom has acceded to the Treaties and Conventions that create the offences including: war
crimes, torture, and enslavement and forced labour offences. The criminal jurisdiction is
presumed territorial in the absence of express words and based on the presence of the accused
within the jurisdiction. There are a number of statutes that impose criminal liability on UK
and/or non-UK nationals, who commit particular acts outside the jurisdiction, but this can only
be exercised where the individual is present or visits the United Kingdom, otherwise the United
Kingdom government would need to seek extradition from the state in which he is located.
Legal person's criminal liability

It is a rule of statutory interpretation that unless a contrary intention appears, the word "person"
includes anybody of persons corporate or unincorporated. Thus, once the principle of corporate
liability for the form of legal entity is accepted, the entity can be charged with any international
offence no matter where it was committed in the same way as a natural person.
Legal person's liability in tort

Under the Rules of the Supreme Court, a court can accept claims against a corporation for a tort
arising out of an international crime committed outside the jurisdiction so long as there is some
real connection with the UK (forum shopping and forum non conveniens). This liability is
usually based on some activity committed within the jurisdiction or on the fact that profits from
the tortious activity have been received within the jurisdiction. Similarly, most breaches of
145
"Criminal Justice", International Centre for Transitional Justice
146
Reuters (July 29, 2008)

226
international human rights would be tortious, e.g. torture could be trespass to the person, etc.
Civil proceedings may be served on a person who is physically present within the jurisdiction,
even if only temporarily. Proceedings may also be served outside the jurisdiction with the
permission of the court. This will be usually be granted for defendants resident in the lex loci
solutionis (the Latin tag for "the law of the place of performance whether in contract or tort), the
lex situs (the Latin tag for "the law of the place where the property is located") or the proper law
state.
UNITED STATES
Natural and legal persons
Because the U.S. courts do not subscribe to the doctrine of universal jurisdiction, the relevant
international law must have been incorporated directly into U.S. criminal law through
Congressional legislation. Congress has enacted statutes covering genocide, war crimes, torture,
piracy, slavery, and trafficking in women and children to meet the U.S. obligations under
international agreements. If a criminal act is commenced in one U.S. state, but the defendant has
fled, the first state must seek extradition and return for trial.
Legal person's liability in tort

Although U.S. federal courts do not apply the doctrine of universal jurisdiction, Joel & Dolly M.
E. Filártiga v Américo Norberto Peña-Irala147 interpreted the Alien Tort Statute, 28 U.S.C.,
which provides: The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the United States. The
Filartiga ruling allows a range of tort claims for alleged breaches of the "law of nations".
Companies may also be liable for the illegal exploitation of resources abroad under the National
Stolen Properties Act and the Racketeering Influenced Corrupt Organizations Act (RICO), and
the courts have allowed claims for forced labour and personal injuries when employed as a slave
laborer, and claims by citizens of "foreign" countries for injuries inflicted by security forces
employed by a subsidiary of U.S. corporations. U.S. courts have in personam (the Latin tag for
"personal jurisdiction") over a corporation if:
(a) the corporation is organized in a US state jurisdiction;
(b) the corporation is doing business in a jurisdiction;
(c) the corporation has consented to be sued; or
(d) the corporation appears in court to defend the action without specifying that the purpose
of the appearance is a special appearance.
In personam jurisdiction over a corporation may be "general", i.e. a suit may be brought for any
cause of action over which the forum court has subject matter jurisdiction and is a proper venue;
or "specific", i.e. the suit may address only those activities which gave rise to the cause of action.
147
Joel & Dolly M. E. Filártiga v Américo Norberto Peña-Irala 630 F.2d 876 (2d Cir., June 30, 1980),

227
Even if the jurisdiction and venue are proper, a federal court has discretion to dismiss the suit
under the act of state doctrine or one of its related doctrines, such as comity or political question.
CANADA
Natural persons
In Canada, the Crimes Against Humanity and War Crimes Act, S.C. 2000 (CAHW) has
incorporated the following as domestic crimes: genocide, crimes against humanity, war crimes,
breach of responsibility by a military commander or a superior (usually a civilian superior),
offences against the administration of justice of the International Criminal Court, and possession
or laundering of proceeds derived from these crimes. Normally, criminal jurisdiction is
exclusively territorial, but CAHW invokes universal jurisdiction as defined in customary
international law.
Legal persons
Companies are not expressly included or excluded from prosecution for international crimes
under CAHW, but all the standard remedies in tort are available against corporations for
activities committed outside the jurisdiction. For civil jurisdiction, the court requires a "real and
substantial connection" with the subject matter of the case (i.e. the forum conveniens rule).
FRANCE
Natural persons
The new Criminal Code includes a series of provisions describing crimes against humanity in
considerable detail, including genocide and aggravated war crimes. A limited number of
international crimes have equivalents in French domestic law, e.g. forced labour is the equivalent
of illegal confinement. Extraterritorial jurisdiction is based on a connection with France through:
• the nationality of the perpetrator (active personality jurisdiction) of the crime or the victim
(passive personality jurisdiction);
• the events constituting the crime represent a connected series of acts or an indivisible act
occurring both in France and another state, or where there were acts of complicity in
France for a crime committed abroad, if the acts are criminal under all relevant systems of
law; or
• The concept of universality where French public policy interests are affected.
Legal persons
In French law, a civil action can be brought jointly with a penal action before a criminal court.
Corporate liability is covered in Articles 121/2 of the new Criminal Code which provides that
legal persons will be liable in the cases identified by the Legislature and Article 213-3 provides
that legal persons may incur criminal liability for all crimes against humanity.

228
NORWAY
Natural persons
Norwegian municipal law incorporates specific areas of international law, but there must be a
matching penal provision in the domestic criminal law as a precondition to enforcement. Norway
is a signatory to the International Criminal Court which has complementary jurisdiction to
municipal criminal courts, albeit that the local courts have precedence to prosecute the crimes of
genocide, crimes against humanity, war crimes and the crime of aggression. Norway prosecutes
international crimes using domestic penal law, e.g. genocide can be treated as homicide, torture
as an offence against the person, etc. Norwegian criminal law is applicable to acts committed
abroad by any Norwegian national or any person domiciled in Norway when the act is a felony
under the law of the country in which it is committed. There is a general discretion to decline a
prosecution which occurred in a case brought against the Israeli Prime Minister.
Legal persons
If a business entity domiciled in Norway is involved in unlawful activity committed outside the
jurisdiction, both civil and criminal actions are available subject to the rule of "double
actionability", i.e. the activity must have been unlawful under the laws of both Norway and the
country of commission. The Norwegian Code of Compensation allows actions for damages for
the loss and damage arising from the breach of international law. Civil jurisdiction is based on
residence or temporary personal presence for natural persons and the place where the board of
directors has its seat. Non-nationals can be sued in Norway if any business activity occurs in
Norway. The court must be conveniens, i.e. objectively competent in a local and functional way
and, in some cases, this requires the defendant's consent.
(J) DARFUR ICC CASE: PROSECUTOR CHARGES THE PRESIDENT OF SUDAN

WITH GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES
Background of Darfur Problem
On July 14, 2008, the Prosecutor of the International Criminal Court ("ICC", "Court") applied to
Pre-Trial Chamber III of the Court for an arrest warrant against the President of Sudan, Omar
Hassan Ahmad al-Bashir.148 This is the first time that the Prosecutor filed charges against a
sitting head of state. The Prosecutor charged Bashir with genocide, crimes against humanity and
war crimes, claiming that Bashir was the "mastermind behind the alleged crimes" that were
committed by forces over which he had "absolute control"149 in the Darfur region of Sudan, in a
conflict which has taken tens or hundreds of thousands of lives so far and displaced millions.150
The Pre-Trial Chamber's decision on the Prosecutor's application is expected with the next
several months.
148
Application for Warrant of Arrest under Article 58, 14 July 2008. An official summary is at http://www.icc-
cpi.int/library/organs/otp/ICC-OTP-Summary-20081704-ENG.pdf (hereinafter Application Summary).
149
Ibid., at 1.
150
For background on the conflict, see Mikael Nabati, The U.N. Responds to the Crisis in Darfur: Security Council
Resolution 1556, ASIL Insight, August 2004, available at http://www.asil.org/insights/insigh142.htm .

229
This is the second case initiated by the Prosecutor in relation to his Darfur investigation. The
Prosecutor had previously asked for and obtained arrest warrants against Ahmad Harun, a high-
ranking official of the Sudanese government, and Ali Kushayb, the leader of the government-
supported Janjaweed militia.151
Sudan is not a state party to the ICC, and accordingly has no treaty obligation to cooperate with
the Court. The ICC has jurisdiction over the Darfur situation because the UN Security Council,
acting under Chapter VII of the UN Charter and pursuant to Article 13(b) of the ICC Statute,
referred the situation to the ICC Prosecutor by Resolution 1593 (2005)152. The same resolution
also obliged Sudan to cooperate fully with the ICC and provide it with any necessary assistance.
The History and Purpose of Article 16

The Security Council‘s power to defer ICC proceedings was one of the most controversial issues
during the negotiation of the Rome Statute. The drafters struggled to find a balance between
recognition of the Security Council‘s primacy over international peace and security and the
Court‘s independence. Initially, the International Law Commission (ILC) proposed that
jurisdiction over any matter already before the Security Council should be eliminated unless the
Council agreed otherwise. This would have given the Security Council complete control over the
Court‘s jurisdiction; to prevent the ICC from addressing a situation, a Permanent Member would
need only add it to the Council‘s agenda and then veto any resolution to permit the Court to
investigate it.
The drafters rejected this formulation and chose instead to structure the Court-Council
relationship so that it would be difficult for the Council to defer a prosecution or investigation.
Instead of requiring Council permission for the Court to act, the drafters opted to require Council
action to stop the Court from acting. In the final version of Article 16, the Security Council must
adopt a resolution, with nine votes in favor and no vetoes, to defer ICC proceedings. Moreover, it
must act under Chapter VII, which requires the Council to determine that it is taking steps to
―maintain or restore international peace and security‖ in the face of a ―threat to the peace‖ or a
―breach of the peace.‖ The drafters of the Rome Statute thus turned the original ILC proposal on
its head and set up a system in which Council intervention in ICC cases would be the exception,
not the default.
151
Case materials available at http://www.icc-cpi.int/cases/Darfur.html. The Prosecutor initially only requested the
Court to issue summonses to appear, but it issued arrest warrants when the Sudanese government proved
uncooperative. See also Kevin Jon Heller, The Situation in Darfur: Prosecutor's Application under Article 58(7) of
the Rome Statute,
152
Text available at http://www.un.org/Docs/sc/unsc_resolutions05.htm

230
Article 16 as Instrument of International Justice

Based on the text, it would be difficult to argue that an exercise of Article 16 by the Security
Council would be unlawful. Although the existence in Darfur of any peace to be threatened is
debatable, the Council conceivably could make a determination that ICC proceedings against
Bashir constitute a threat to peace and that deferral of those proceedings would maintain or
restore it. Nonetheless, such a use of Article 16 would fail to make any progress toward actual
peace in Darfur. It would only entrench the climate of impunity that has pervaded Sudan for
decades and do damage to the Court in the process.
Article 16 should be reserved to protect the fragile moves of warring parties toward peace and
stability— not to convince a government to comply with the obligations it already has. While
commentators and diplomats urge that an Article 16 suspension would not be a free pass for
Bashir because the Council could condition the suspension on any array of requirements, they
fail to recognize that Khartoum is already legally required to cooperate with the ICC and to
comply with its obligations under international human rights and humanitarian law. Putting an
Article 16 suspension on the table merely allows Khartoum to treat these legal obligations as
bargaining chips. The Government of Sudan‘s intransigence and violence do not change this
situation into one that the drafters of Article 16 envisioned.
Moreover, deferral of ICC proceedings against Bashir risks reducing the fledgling court itself to
a tool used to secure political concessions. The ICC occupies a unique position in the scheme of
international governance. Unlike the ad hoc tribunals for the former Yugoslavia and Rwanda, the
ICC has an open-ended mandate over crimes committed in conflicts that are ongoing, not merely
those in which the fighting has ended. As a result, the Court operates amid political peace
processes and on-the-ground crisis management. To see these tracks as competing, rather than
coordinating, is to see justice as the enemy of peace.
But in fact, justice is an integral part of peace; without accountability, atrocities continue without
cost, and peace becomes more remote. Before the Government of Sudan waged war in Darfur, it
honed its techniques of burning villages and killing civilians in southern Sudan, where the land
and people were ravaged without one condemnation by the Security Council throughout the
1990s. At that time, there was no international court to try the perpetrators of those crimes, and
Khartoum was left to redeploy its brutal tactics in Darfur. The same mistake must not be made
again — and now that the ICC can hold perpetrators of international crimes accountable, the
same mistake need not be made again.
Using Article 16 to convince the Government of Sudan to stop attacking its people will reward
Khartoum for its criminal policies. This poses not only a danger to the people of Darfur, who
will continue to suffer, but also to the ICC and to all efforts at international justice, which will be
seen as nothing more than political tools to convince criminal leaders to come to the negotiating

231
table. And once it becomes clear that justice is merely political, its power to compel any action at
all will evaporate.
But the costs of instrumentalizing international justice are far greater than simply milking the
threat of prosecution of all effectiveness. Justice is more than a tool; it is distinct from economic
sanctions or diplomatic isolation. Justice is an end in itself. To suspend ICC action at this time,
when the threat to peace triggered by the warrant results solely from the deliberate actions of the
defendant, when there is no peace process to protect, and when Bashir continues to orchestrate
attacks against civilians, would serve only to strengthen the climate of impunity that has reigned
in Darfur, to ignore the suffering of victims, and to further erode the rule of law in Sudan.
The ICC‘s Darfur Proceedings

The history of ICC involvement in Sudan is one of inaction and defiance on the part of
Khartoum. Following the Security Council‘s initial referral of the situation in Darfur to the Court
in 2005, ICC Prosecutor Luis Moreno-Ocampo launched a case against Ahmad Mohammed
Haroun, the Sudanese Minister of State for the Interior, and Ali Kushayb, a leader of the
janjaweed militia. Neither individual has yet been turned over to the Court; instead, the
Government of Sudan brazenly promoted Haroun, who by then had taken on a new position
blocking the delivery of humanitarian aid to displaced Darfuris as State Minister for
Humanitarian Affairs, to lead a national committee to investigate human rights abuses in Darfur.
Last July, when Moreno-Ocampo announced his pursuit of Bashir, Khartoum predictably
stepped up its defiance. Playing to the fears held by many Sudan watchers, Sudanese officials
began to make explicit and implicit threats regarding the dangers peacekeepers, humanitarian
workers, and civilians both in Darfur and throughout the country would face if the warrant was
issued.
At the same time, the Government of Sudan rallied its allies to pressure the Security Council to
exercise its power under Article 16. Within days, the Arab League, African Union, Organization
of the Islamic Conference, and Non-Aligned Movement were all warning of the threat to peace
posed by the Bashir case and calling for immediate suspension of proceedings. The pleas for
Security Council action have only escalated now that the warrant has been issued and the
―warnings‖ have started to come true: The same day that Bashir became a fugitive from justice in
the eyes of the ICC, the Government of Sudan expelled thirteen humanitarian groups that
provide food, clean water, and health care to the people of Darfur.
Issuance of Arrest Warrants

The Prosecutor's application for an arrest warrant is not a formal charging instrument or an
indictment, but a measure to obtain the presence of an accused for trial. It is only after the arrest
or voluntary surrender of an accused that the charges against him or her are confirmed by the

232
Pre-Trial Chamber, in accordance with Article 61 of the Statute, and the trial is set to begin.
Hence, the Prosecutor's theories of criminal responsibility of the accused, both as to the
substantive crimes alleged and to modes of liability, are subject to change as the proceedings
progress.
The Prosecutor is required to specify his charges upon applying for an arrest warrant, even
though they are not determinative of the final charges brought against an accused. Under Article
58(1) of the Statute, to obtain an arrest warrant the Prosecutor must show, first, that "[t]here are
reasonable grounds to believe that the person has committed a crime within the jurisdiction of
the Court" (emphasis added). This is a lower evidentiary requirement than the one for the
confirmation of charges under 61(5) of the Statute, when the Prosecutor must "support each
charge with sufficient evidence to establish substantial grounds to believe that the person
committed the crime charged" (emphasis added). Further, under Article 58(2) of the Statute the
Prosecutor must demonstrate that the arrest sought is necessary
(i) to ensure the person's appearance at trial; or
(ii) to ensure that the person does not obstruct or endanger the investigation or the court
proceedings; or
(iii) to prevent the person from continuing with the commission of the crime charged or a
related crime arising out of the same circumstances.
Bearing in mind the relatively low evidentiary threshold required for the issuance of arrest
warrants, it is unlikely that the Pre-Trial Chamber will reject any of the Prosecutor's charges
against Bashir at this point in time. It is also unlikely that the Chamber will declare the charges
inadmissible pursuant to the complementarity principle enshrined in Article 17 of the Statute,
since Sudan has clearly demonstrated unwillingness to investigate its high-ranking government
officials for crimes in Darfur.
The Charges
The Prosecutor alleges that Bashir orchestrated a campaign of destruction and persecution
against three distinct ethnic groups - the Fur, Masalit and Zaghawa - whom Bashir portrayed as
"Africans", as opposed to "Arab" tribes supportive of the government, in order to suppress
rebellion against his rule. According to the Prosecutor, that criminal campaign can be qualified
as genocide.153 The crime of genocide is defined in Article II of the 1948 Genocide Convention,
which is reproduced in Article 6 of the ICC Statute: [Genocide is] any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
153
Application Summary, at 3.

233
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Genocide occurs when five different types of actus reus are committed. These also constitute
elements of certain crimes against humanity and war crimes. Genocide is distinct from these
crimes, however, because it requires not only that the acts be committed intentionally, but also
with the specific intent to destroy, physically or biologically, the protected group as such, in
whole or in part.154 The specific intent requirement makes genocide a notoriously difficult crime
to prove.
The Prosecutor charges Bashir with three distinct counts of genocide. First, the Prosecutor
alleges that Bashir is guilty of genocide for killing members of the Fur, Masalit and Zaghawa
ethnic groups. According to the Prosecutor, forces under Bashir's control did not confine
themselves to attacking rebel armed groups, but they deliberately and systematically attacked the
civilian population of the targeted ethnic groups. Moreover, they continued such attacks even
against the overwhelming majority of the population of the targeted groups that was forcibly
displaced into numerous refugee camps. This, according to the Prosecutor, demonstrates that the
intent behind these attacks was the destruction of the targeted ethnic groups.155
Second, the Prosecutor charges Bashir with committing genocide by causing serious mental
harm to the members of targeted groups, chiefly through a systematic campaign of rapes.
According to the Prosecutor, thousands of women have been raped in Darfur by forces under
Bashir's control, while a third of all rapes are rapes of children. Likewise, the Prosecutor alleges
that massive forced displacement of the targeted groups was conducted in such a manner as to
traumatize the victims and prevent the reconstitution of the groups. The cumulative effect of
rapes and displacement causes serious mental or psychological harm to the members of the
targeted groups.156
Third, the Prosecutor asserts that Bashir is responsible for genocide committed by deliberately
inflicting on the targeted groups conditions of life calculated to bring about their physical
destruction in whole or in part. Through displacement, usurpation of land, starvation, denial of
medical assistance and obstruction of international relief efforts, the Prosecutor argues, Bashir
intends to ensure the "slow death" of the targeted groups.157
154
See generally William Schabas, Genocide in International Law (2000).
155
Application Summary, at 3-5.
156
157

234
The Prosecutor also charged Bashir with crimes against humanity, namely murder, rapes,
forcible displacement and extermination, both against the members of the three specifically
targeted ethnic groups, but also against the members of several smaller ethnic groups, for which
the Prosecutor thought there to be insufficient evidence to sustain a charge of genocide. The
Prosecutor likewise charged Bashir with the war crime of pillaging several towns and villages in
Darfur.158
Since Bashir is not accused of committing the charged crimes directly, the Prosecutor has to
offer a theory of Bashir's liability for the physical acts of others. In the case law of the ad hoc
tribunals, the modes of liability most frequently used in that regard are joint criminal enterprise,
or common purpose liability, as well as command and superior responsibility. The Application
Summary does not state unambiguously on which theories of criminal liability the Prosecutor is
relying, but states briefly that Bashir "committed crimes through members of the state apparatus,
the army and the Militia/Janjaweed in accordance with Article 25(3)(a) of the Statute (indirect
perpetration or perpetration by means)."159 This is a novel form of criminal responsibility, which
has to date not been used before international criminal tribunals.160
Whether a high ranking official who devised a broad criminal policy can be convicted as a
perpetrator of all of the crimes committed by his subordinates, even if he had no knowledge of
the circumstances of specific criminal acts, is unclear under the ICC Statute? Article 25(3)(a) of
the Statute provides that persons shall be criminally responsible if they commit a crime within
the jurisdiction of the Court, "whether as an individual, jointly with another or through another
person, regardless of whether that other person is criminally responsible" (emphasis added). At
least one Pre-Trial Chamber of the Court has held that such indirect participation in crimes can
be read broadly.161 But it will likely require several full trials and pronouncements by the
Appeals Chamber to solidify the state of the law on modes of criminal liability before the ICC.
The Prosecutor could charge Bashir pursuant to several alternative, more established (if not
themselves uncontroversial) theories of criminal responsibility. First, Bashir could be charged for
ordering the commission of crimes by others, under Article 25(3)(b) of the Statute. Second, he
could be charged on the basis of common purpose liability or joint criminal enterprise, under
Article 25(3)(d) of the Statute. Third, he could be charged on the basis of superior responsibility,
158
159
160
The theory regards the immediate perpetrators of crimes merely as tools in the hands of a mastermind who
controls them through his dominant will. Such a form of responsibility, which exists in German law as
Organisationsherrsschaft, has been advocated in recent years by some scholars. See, e.g., Kai Ambos, Joint Criminal
Enterprise and Command Responsibility, 5 J. Int'l Crim. Just. 159 (2007).
161
See Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, and Decision on the Confirmation of Charges, 29
January 2007, paras. 317-367.

235
under Article 28 of the Statute.162 Since Article 28 differentiates between civilian and military
superiors, requiring a more stringent mens rea standard for the former than the latter,163 it would
be necessary to establish whether Bashir is a civilian or a military commander, as he is not only
Sudan's president, but also a general and commander-in-chief of the Sudanese army.
The Genocide Charge

The decision to charge Bashir with genocide will be viewed as controversial, as genocide is the
international crime most hard to prove because of its specific intent requirement -- especially
where the proof required is one beyond a reasonable doubt. Further, the UN Commission of
Inquiry on Darfur concluded in 2005 that there was insufficient evidence to qualify the grave
crimes in Darfur as genocide.164
The Prosecutor does not seem to dispute the Commission's factual findings, but rather finds that
the best evidence of Bashir's genocidal intent are the attacks against the civilian population of the
targeted ethnic groups in refugee camps that happened after the Commission issued its report and
which could have no other purpose but the destruction of the civilian population. 165 In the
Prosecutor's view, the only reasonable inference from the evidence available is that Bashir
intends to destroy substantial parts of the targeted ethnic groups as such.166
A further potential difficulty in proving genocide is that the targeted groups - the Fur, Masalit
and Zaghawa - which speak the same language and are of the same religion as the alleged
perpetrators might not qualify as protected groups within the meaning of Article II of the
Genocide Convention. This raises the issue whether the protected groups should be defined
objectively or subjectively, i.e., on the basis of the group's self-perception and that of the
perpetrators. Thus, in its report the Commission of Inquiry concluded that the targeted groups
could not be qualified as distinct ethnic groups pursuant to an objective test, but could indeed be
so qualified if a subjective test was used.167
The Prosecutor's characterization of the crimes in Darfur as genocide has several other
consequences. First, under Article I of the Genocide Convention all states parties have on
obligation to prevent genocide. As interpreted by the International Court of Justice in the
162
The Prosecutor seems to be contemplating this possibility when he refers to Bashir's failure to punish his
subordinates, particularly Ahmad Harun. See Application Summary, at 7-9.
163
Under Article 28(a)(i) a military commander would be responsible for failing to prevent a crime committed by
one of his subordinates if he "either knew or, owing to the circumstances at the time, should have known" that the
forces under his command were about to commit the crime. On the other hand, under Article 28(b)(i), a civilian
subordinate would be responsible if he "either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such crimes."
164
Available at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf, hereinafter UNCOI Report.
165
166
167
UNCOI Report, paras. 508-512.

236
Bosnian Genocide case,168 the obligation to prevent genocide is not limited to the state's own
territory.169 The obligation is incumbent on all states, and it requires them to exercise due
diligence and "employ all means reasonably available to them, so as to prevent genocide so far as
possible."170 A State's obligation to prevent, and the corresponding duty to act, arise at the instant
that the State learns of, or should normally have learned of, the existence of a serious risk that
genocide will be committed."171 At a minimum, the Prosecutor's charging Bashir with genocide
puts all states on notice of a serious risk that genocide is being committed in Darfur. Moreover,
Sudan acceded to the Genocide Convention on 13 October 2003, and made no reservation to the
compromisory clause in Article IX of the Convention, which grants jurisdiction to the ICJ.172
There is therefore no obstacle to a state, or a group of states, initiating proceedings against Sudan
before the ICJ regarding Darfur.
Immunity
An additional question is whether Bashir could invoke personal immunity before the ICC as a
sitting head of state. Article 27 of the ICC Statute expressly provides that immunities shall not be
a bar to the Court exercising its jurisdiction. However, it could be argued that, since Sudan is not
a party to the ICC Statute, it has not waived the immunity of its head of state by virtue of Article
27. Moreover, the fact that the ICC is an international court does not ipso facto mean that
immunity cannot be invoked before it, as the ICC member states could not have transferred to an
international organization the power to try persons whom for want of jurisdiction they could not
try themselves, e.g., the head of state of a non-party.173
One potential response to the latter argument is that, even if immunity could be invoked before
the ICC (Article 27 notwithstanding), it could be argued that when the UN Security Council used
its Chapter VII powers to refer the Darfur situation to the ICC it implicitly waived Bashir's head
of state immunity. The Council explicitly waived head of state immunity when it created the ad
hoc UN tribunals for Rwanda and the former Yugoslavia.174
Peace versus Justice

The charges against Bashir also raise a quintessential political question: whether the prosecution
of the Sudanese president will impede any progress towards peace in Darfur. Pursuant to Article
16 of the ICC Statute, the Security Council can defer a prosecution or an investigation for a
168
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, 27
February 2007, available at http://www.icj-cij.org/docket/files/91/13685.pdf, hereinafter "Genocide judgment."
169
Genocide judgment, para. 183.
170
Genocide judgment, para. 430.
171
Genocide judgment, para. 431
172
See at http://www2.ohchr.org/english/bodies/ratification/1.htm
173
See Dapo Akande, International Law Immunities and the International Criminal Court, 98 AJIL 497 (2004).
174
Statute of the International Tribunal for the Former Yugoslavia, Art. 7(2) -"The official position of any accused
person, whether as Head of State or Government or as a responsible Government official, shall not relieve such
person of criminal responsibility nor mitigate punishment."

237
renewable period of twelve months. Some Council members have already indicated that they
would favour a deferral.175 It seems unlikely, however, that absent new developments there will
be sufficient consensus within the Council for a deferral of Bashir's prosecution. On the other
hand, the success of the prosecution will also largely depend on the pressure that the Security
Council brings to bear on Sudan, as well as on the strength of Bashir's hold on power within the
country. The ball is now squarely in the Security Council's court.
Security Council halted the court Proceeding

The UN Security Council to stop the International Criminal Court's proceedings against
Sudanese President Omar Hassan al-Bashir by using its power under Article 16 of the Rome
Statute would render the ICC a mere bargaining chip and would only worsen the situation in
Darfur. On March 4, 2009, the International Criminal Court (ICC) issued an arrest warrant
against Omar Hassan al-Bashir, the President of Sudan. Bashir, the first sitting head of state
indicted by the Court, is accused of war crimes and crimes against humanity in Darfur, the
western region of Sudan where an estimated 300,000 people have been killed and more than 2.7
million have been forced from their homes as a result of six years of violence.
The issuance of the warrant has inspired intense debate about whether criminal proceedings
against Bashir would bring even more violence and conflict to Darfur and destroy any hope of
peace. Faced with the prospect of heightened suffering in Darfur and throughout Sudan,
advocates, nongovernmental organizations, and policymakers — including both allies and
opponents of the Government of Sudan — have called for the UN Security Council to stop the
Court by using its power under Article 16 of the Rome Statute, which allows the Council to order
the suspension of ICC proceedings in a case for up to one year, with the option to renew the
suspension an unlimited number of times.
Using this option to suspend proceedings in the case of Bashir may well fall within the authority
of the Security Council, but it would be an inadvisable use of its power. Employing Article 16 in
this manner would render the ICC a mere bargaining chip, which not only would worsen the
situation in Darfur, but also would vitiate any power the fledgling Court might have to secure
accountability and deter future crimes.
Reading Material
1. M. Cherif Bassiouni, International Criminal Law, 2nd ed. (1999);
2. M. Cherif Bassiouni, Introduction to International Criminal Law. Ardsley, NY:
Transnational Publishers, 2003, xxxvi + 823 pp
3. M. Cherif Bassiouni, Crimes against Humanity (1999).
4. Roy Gutman and David Rieff, Crimes of War (1999).
5. William A. Schabas, Genocide in International Law (2000);
175
See Warrant for Sudanese is Talk of Security Council, International Herald Tribune, 17 July 2008, available at
http://www.iht.com/articles/2008/07/17/africa/17nations.php.

238
6. Antonio Cassese et al. (eds.), International Criminal Court: A Commentary on the Rome
Statute for an International Criminal Court (2001);
7. Kai Ambos and Otto Triffterer (eds.), Commentary on the Rome Statute of the
International Criminal Court (1999);
8. William A. Schabas, An Introduction to the International Criminal Court (2001); and
Telford Taylor, The Anatomy of the Nuremberg Trials (1992).
9. Ilias Bantekas, Susan Nash, Mark Mackarel, International Criminal Law. London etc.:
Cavendish, 2001, lvi + 323 pp.
10. Yves Beigbeder, Judging War Criminals. The Politics of International Justice.
Basingstoke: Macmillan, 1999, xvii + 230 pp
11. Kriangsak Kittichaisaree, International Criminal Law. Oxford etc.: Oxford University
Press, 2002, xxxi + 482 pp.
12. Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the
Crossroads, Vienna / New York: Springer, 2003, ix + 449 pp.
13. Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in
Codification and Implementation. Kluwer, 1997, 508 pp.
14. Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights
Violations. Nijhoff, 1992, 252 pp.
15. Alexander Zahar and Goran Sluiter, International Criminal Law: A Critical Introduction.
Oxford: Oxford University Press, 2007, xlviii + 530 pp.
16. John E. Ackerman and Eugene O'Sullivan, Practice and Procedure of the International
Criminal Tribunal for the Former Yugoslavia with selected materials from the
International Criminal Tribunal for Rwanda. The Hague etc.: Kluwer Law International,
2002, xxi + 555 pp

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CHAPTER 17
INTERNATIONAL HUMAN RIGHTS LAW

---------------------------------------------------------------------------------------------------------------------
(A) INTRODUCTION
Human rights are those rights that belong to an individual or group of individuals as a
consequence of being human. They refer to a wide variety of values or capabilities thought to
enhance human agency and declared to be universal in character, in some sense equally claimed
for all human beings. It is a common observation that human beings everywhere demand the
realization of diverse values or capabilities to ensure their individual and collective well-being. It
also is a common observation that this demand is often painfully frustrated by social as well as
natural forces, resulting in exploitation, oppression, persecution, and other forms of deprivation.
Deeply rooted in these twin observations are the beginnings of what today are called ―human
rights‖ and the national and international legal processes that are associated with them.
(B) HISTORICAL DEVELOPMENT OF THE CONCEPT OF HUMAN RIGHTS

The expression ―human rights‖ is relatively new, having come into everyday parlance only since
World War II, the founding of the United Nations in 1945, and the adoption by the UN General
Assembly of the Universal Declaration of Human Rights in 1948. It replaced the phrase ―natural
rights,‖ which fell into disfavor in part because the concept of natural law (to which it was
intimately linked) had become a matter of great controversy; and it replaced as well the later
phrase ―the rights of Man,‖ which was not universally understood to include the rights of
women.
Origins in ancient Greece and Rome

The origins of the concept of human right went back to ancient Greece and Rome, where it was
closely tied to the doctrines of the Stoics, who held that human conduct should be judged
according to, and brought into harmony with, the law of nature. In part because Stoicism played
a key role in its formation and spread, Roman law similarly allowed for the existence of a natural
law and with it—pursuant to the jus gentium (―law of nations‖)—certain universal rights that
extended beyond the rights of citizenship. According to the Roman jurist Ulpian, for example,
natural law was that which nature, not the state, assures to all human beings, Roman citizens or
not.
It was not until after the middle Ages, however, that natural law became associated with natural
rights. In Greco-Roman and medieval times, doctrines of natural law concerned mainly the
duties, rather than the rights, of ―Man.‖ Moreover, as evidenced in the writings of Aristotle and
St. Thomas Aquinas, these doctrines recognized the legitimacy of slavery and serfdom and, in so

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doing, excluded perhaps the most important ideas of human rights as they are understood
today—freedom (or liberty) and equality.
For the idea of human rights qua natural rights to gain general recognition, therefore, certain
basic societal changes were necessary, changes of the sort that took place gradually, beginning
with the decline of European feudalism from about the 13th century and continuing through the
Renaissance to the Peace of Westphalia (1648). During this period, resistance to religious
intolerance and political and economic bondage; the evident failure of rulers to meet their
obligations under natural law; and the unprecedented commitment to individual expression and
worldly experience that was characteristic of the Renaissance all combined to shift the
conception of natural law from duties to rights. The teachings of Aquinas and Hugo Grotius on
the European continent, and the Magna Carta (1215), the Petition of Right of 1628, and the
English Bill of Rights (1689) in England, were proof of this change. Each testified to the
increasingly popular view that human beings are endowed with certain eternal and inalienable
rights that never were renounced when humankind ―contracted‖ to enter the social from the
primitive state and never diminished by the claim of the ―divine right of kings.‖
Natural law transformed into natural rights

The modern conception of natural law as meaning or implying natural rights was elaborated
primarily by thinkers of the 17th and 18th centuries. The intellectual—and especially the
scientific—achievements of the 17th century (including the materialism of Hobbes, the
rationalism of Descartes and Leibniz, the pantheism of Spinoza, and the empiricism of Bacon
and Locke) encouraged a belief in natural law and universal order; and during the 18th century,
the so-called Age of Enlightenment, a growing confidence in human reason and in the
perfectibility of human affairs led to the more comprehensive expression of this belief.
Particularly important were the writings of John Locke, arguably the most important natural-law
theorist of modern times, and the works of the 18th-century philosophes centered mainly in
Paris, including Montesquieu, Voltaire, and Jean-Jacques Rousseau. Locke argued in detail,
mainly in writings associated with the English Glorious Revolution (1688), that certain rights
self-evidently pertain to individuals as human beings (because these rights existed in ―the state of
nature‖ before humankind entered civil society); that chief among them are the rights to life,
liberty (freedom from arbitrary rule), and property; that, upon entering civil society, humankind
surrendered to the state—pursuant to a ―social contract‖—only the right to enforce these natural
rights and not the rights themselves; and that the state's failure to secure these rights gives rise to
a right to responsible, popular revolution. The philosophes, building on Locke and others and
embracing many and varied currents of thought with a common supreme faith in reason,
vigorously attacked religious and scientific dogmatism, intolerance, censorship, and social and
economic restraints. They sought to discover and act upon universally valid principles governing
nature, humanity, and society, including the inalienable ―rights of Man,‖ which they treated as a
fundamental ethical and social gospel.

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Not surprisingly, this liberal intellectual ferment exerted a profound influence in the Western
world of the late 18th and early 19th centuries. Together with the Glorious Revolution in
England and the resulting Bill of Rights, it provided the rationale for the wave of revolutionary
agitation that swept the West, most notably in North America and France. Thomas Jefferson,
who had studied Locke and Montesquieu, gave poetic eloquence to the plain prose of the 17th
century in the Declaration of Independence, proclaimed by the 13 American colonies on July 4,
1776: ―We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and
the Pursuit of Happiness.‖ Similarly, the marquis de Lafayette, who won the close friendship of
George Washington and who shared the hardships of the American Revolution, imitated the
pronouncements of the English and American revolutions in the Declaration of the Rights of
Man and of the Citizen of August 26, 1789, proclaiming that ―men are born and remain free and
equal in rights‖ and that ―the aim of every political association is the preservation of the natural
and imprescriptible rights of man.‖
In sum, the idea of human rights, though known by another name, played a key role in late 18th-
and early 19th-century struggles against political absolutism. It was, indeed, the failure of rulers
to respect the principles of freedom and equality that was responsible for this development.
Criticism of idea of natural rights

The idea of human rights as natural rights was not without its detractors, however. In the first
place, because it was frequently associated with religious orthodoxy, the doctrine of natural
rights became less attractive to philosophical and political liberals. Additionally, because they
were conceived in essentially absolutist terms, natural rights were increasingly considered to
conflict with one another. Most importantly, the doctrine of natural rights came under powerful
philosophical and political attack from both the right and the left.
In England, for example, conservative political thinkers such as Edmund Burke and David Hume
united with liberals such as Jeremy Bentham to condemn the doctrine, the former out of fear that
public affirmation of natural rights would lead to social upheaval, the latter out of concern lest
declarations and proclamations of natural rights substitute for effective legislation. In his
Reflections on the Revolution in France (1790), Burke—a believer in natural law who
nonetheless denied that the ―rights of Man‖ could be derived from it—criticized the drafters of
the Declaration of the Rights of Man and of the Citizen for proclaiming the ―monstrous fiction‖
of human equality, which, he argued, serves but to inspire ―false ideas and vain expectations in
men destined to travel in the obscure walk of laborious life.‖ Bentham, one of the founders of
Utilitarianism, was no less scornful. ―Rights,‖ he wrote, ―is the child of law; from real law come
real rights; but from imaginary laws, from ‗law of nature,' come imaginary rights.…Natural
rights is simple nonsense; natural and imprescriptible rights (an American phrase)…[is]

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rhetorical nonsense, nonsense upon stilts.‖ Agreeing with Bentham, Hume insisted that natural
law and natural rights are unreal metaphysical phenomena.
This assault upon natural law and natural rights intensified and broadened during the 19th and
early 20th centuries. John Stuart Mill, despite his vigorous defense of liberty, proclaimed that
rights ultimately are founded on utility. The German jurist Friedrich Karl von Savigny, England's
Sir Henry Maine, and other ―historicalist‖ legal thinkers emphasized that rights are a function of
cultural and environmental variables unique to particular communities. The English jurist John
Austin argued that the only law is ―the command of the sovereign‖ (a phrase of Hobbes). And
the logical positivists of the early 20th century insisted that the only truth is that which can be
established by verifiable experience and that therefore ethical pronouncements are not
cognitively significant. By World War I, there were scarcely any theorists who would defend the
―rights of Man‖ along the lines of natural law. Indeed, under the influence of 19th-century
German Idealism and parallel expressions of rising European nationalism, there were some—the
Marxists, for example—who, though not rejecting individual rights altogether, maintained that
rights, from whatever source derived, belong to communities or whole societies and nations
preeminently.
Persistence of the notion of human rights in 20th century

Although the heyday of natural rights proved short, the idea of rights nonetheless endured. The
abolition of slavery, the implementation of factory legislation, the rise of popular education and
trade unionism, the universal suffrage movement—these and other examples of 19th-century
reformist impulses afford ample evidence that the idea was not to be extinguished, even if it‘s a
priori derivation had become a matter of general skepticism. But it was not until the rise and fall
of Nazi Germany that the idea of human rights truly came into its own. Many of the gruesome
atrocities committed by the Nazi regime had been officially authorized by Nazi laws and decrees,
and this fact convinced many that law and morality cannot be grounded in any purely Idealist or
Utilitarian or other consequentialist doctrine. Certain actions, according to this view, are
absolutely wrong, no matter what the circumstances; human beings are entitled to simple respect,
at least.
Today the vast majority of legal scholars and philosophers—particularly in the liberal West—
agree that every human being has, at least in theory, some basic rights. The last half of the 20th
century may fairly be said to mark the birth of the international as well as the universal
recognition of human rights. In the charter establishing the United Nations, for example, all
member states pledged themselves to take joint and separate action for the achievement of
―universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.‖ In the Universal Declaration of Human
Rights, representatives from many cultures endorsed the rights therein set forth ―as a common
standard of achievement for all peoples and all nations.‖ And in 1976 the International Covenant

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on Economic, Social and Cultural Rights and the International Covenant on Civil and Political
Rights, each approved by the UN General Assembly in 1966, entered into force and effect.
(C) DEFINING HUMAN RIGHTS

Today there is a widespread acceptance of the principle of human rights, but it does not mean to
say that there is complete agreement about the definition, nature or scope of such rights. Among
the basic questions that have yet to receive conclusive answers are the following:
 whether human rights are to be viewed as divine, moral, or legal entitlements;
 whether they are to be validated by intuition, culture, custom, social contract, principles
of distributive justice, or as prerequisites for happiness;
 whether they are to be understood as irrevocable or partially revocable; and
 Whether they are to be broad or limited in number and content.
Commonly accepted postulates about the nature of human rights:

Despite this lack of consensus, a number of widely accepted (and interrelated) postulates can
assist in the task of defining human rights. Five in particular stand out, though not even these are
without controversy.
First, regardless of their ultimate origin or justification, human rights are understood to represent
both individual and group demands for political power, wealth, enlightenment, and other
cherished values or capabilities, the most fundamental of which is respect and its constituent
elements of reciprocal tolerance and mutual forbearance in the pursuit of all other such values or
capabilities. Consequently, human rights imply both claims against persons and institutions
impeding the realization of these values or capabilities and standards for judging the legitimacy
of laws and traditions. At bottom, human rights qualify state sovereignty and power, sometimes
expanding the latter even while circumscribing the former.
Second, human rights are commonly assumed to refer, in some vague sense, to ―fundamental,‖
as distinct from ―nonessential,‖ claims or ―goods.‖ In fact, some theorists go so far as to limit
human rights to a single core right or two—for example, the right to life or the right to equal
freedom of opportunity. The tendency is to emphasize ―basic needs‖ and to rule out ―mere
wants.‖
Third, reflecting varying environmental circumstances, differing worldviews, and inescapable

interdependencies within and between different value or capability systems, human rights refer
to a wide continuum of claims, ranging from the most justiciable to the most aspirational. Human
rights partake of both the legal and the moral orders, sometimes indistinguishably. They are
expressive of both the ―is‖ and the ―ought‖ in human affairs.

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Fourth, most assertions of human rights—though arguably not all—are qualified by the
limitation that the rights of individuals or groups in particular instances are restricted as much as
is necessary to secure the comparable rights of others and the aggregate common interest. Given
this limitation, which connects rights to duties, human rights are sometimes designated prima
facie rights, so that ordinarily it makes little or no sense to think or talk of them in absolutist
terms.
Finally, if a right is determined to be a human right, it is understood to be quintessentially

general or universal in character, in some sense equally possessed by all human beings
everywhere, including in certain instances even the unborn. In stark contrast to the divine right of
kings and other such conceptions of privilege, human rights extend in theory to every person on
Earth, without discriminations irrelevant to merit or need, simply for being human.
In several critical respects, however, all these postulates raise more questions than they answer.
Granted that human rights qualify state power; do they also qualify private power? If so, when
and how? What does it mean to say that a right is fundamental, and according to what standards
of importance or urgency is it so judged? What is the value of embracing non-justiciable rights as
part of the jurisprudence of human rights? Does it harbor more than rhetorical significance? If so,
how? When and according to what criteria does the right of one person or group of people give
way to the right of another? What happens when individual and group rights collide? How are
universal human rights determined? Are they a function of culture or ideology, or are they
determined according to some transnational consensus of merit or value? If the latter, is the
consensus regional or global? How exactly would such a consensus be ascertained, and how
would it be reconciled with the right of nations and peoples to self-determination? Is the
existence of universal human rights incompatible with the notion of national sovereignty? Should
supranational norms, institutions, and procedures have the power to nullify local, regional, and
national laws on capital punishment, corporal punishment of children, ―honor killing,‖ veil
wearing, female genital cutting, male circumcision, the claimed right to bear arms, and other
practices? How would such a situation comport with Western conceptions of democracy and
representative government?
In other words, though accurate, the five foregoing postulates are fraught with questions about
the content and legitimate scope of human rights and about the priorities, if any, that exist among
them. Like the issue of the origin and justification of human rights, all five are controversial.
The content of human rights: Three ―generations‖ of rights

Like all normative traditions, the human rights tradition is a product of its time. Therefore, to
understand better the debate over the content and legitimate scope of human rights and the
priorities claimed among them, it is useful to note the dominant schools of thought and action
that have informed the human rights tradition since the beginning of modern times. Particularly

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helpful in this regard is the notion of three ―generations‖ of human rights advanced by the French
jurist Karel Vasak. Inspired by the three themes of the French Revolution, they are: the first
generation of civil and political rights (liberté); the second generation of economic, social, and
cultural rights (égalité); and the third generation of solidarity rights (fraternité). Vasak's model is,
of course, a simplified expression of an extremely complex historical record, and it is not
intended to suggest a linear process in which each generation gives birth to the next and then dies
away. Nor is it to imply that one generation is more important than another. The three
generations are understood to be cumulative, overlapping, and, it is important to note,
interdependent and interpenetrating.
First generation: Civil and political rights (Liberté):

The first generation of civil and political rights derives primarily from the 17th- and 18th-century
reformist theories noted above (i.e., those associated with the English, American, and French
revolutions). Infused with the political philosophy of liberal individualism and the related
economic and social doctrine of laissez-faire, the first generation conceives of human rights more
in negative terms (―freedoms from‖) than positive ones (―rights to‖); it favours the abstention
over the intervention of government in the quest for human dignity. Belonging to this first
generation, thus, are rights such as those set forth in Articles 2–21 of the Universal Declaration
of Human Rights, including freedom from gender, racial, and equivalent forms of discrimination;
the right to life, liberty, and security of the person; freedom from slavery or involuntary
servitude; freedom from torture and from cruel, inhuman, or degrading treatment or punishment;
freedom from arbitrary arrest, detention, or exile; the right to a fair and public trial; freedom
from interference in privacy and correspondence; freedom of movement and residence; the right
to asylum from persecution; freedom of thought, conscience, and religion; freedom of opinion
and expression; freedom of peaceful assembly and association; and the right to participate in
government, directly or through free elections. Also included are the right to own property and
the right not to be deprived of it arbitrarily—rights that were fundamental to the interests fought
for in the American and French revolutions and to the rise of capitalism.
Yet it would be wrong to assert that these and other first-generation rights correspond completely
to the idea of ―negative‖ as opposed to ―positive‖ rights. The right to security of the person, to a
fair and public trial, to asylum from persecution, and to free elections, for example, manifestly
cannot be assured without some affirmative government action. What is constant in this first-
generation conception is the notion of liberty, a shield that safeguards the individual—alone and
in association with others—against the abuse of political authority. This is the core value.
Featured in the constitution of almost every country in the world and dominating the majority of
international declarations and covenants adopted since World War II, this essentially Western
liberal conception of human rights is sometimes romanticized as a triumph of the individualism
of Thomas Hobbes and John Locke over Hegelian statism.

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Second generation: Economic, social, and cultural rights (Égalité):

The second generation of economic, social, and cultural rights originated primarily in the
socialist tradition, which was foreshadowed among adherents of the Saint-Simonian movement
of early 19th-century France and variously promoted by revolutionary struggles and welfare
movements that have taken place since. In large part, it is a response to the abuses of capitalist
development and its underlying and essentially uncritical conception of individual liberty, which
tolerated, and even legitimized, the exploitation of working classes and colonial peoples.
Historically, it is a counterpoint to the first generation of civil and political rights, conceiving of
human rights more in positive terms (―rights to‖) than in negative ones (―freedoms from‖) and
requiring more the intervention than the abstention of the state for the purpose of assuring the
equitable production and distribution of the values or capabilities involved. Illustrative are some
of the rights set forth in Articles 22–27 of the Universal Declaration of Human Rights, such as
the right to social security; the right to work and to protection against unemployment; the right to
rest and leisure, including periodic holidays with pay; the right to a standard of living adequate
for the health and well-being of self and family; the right to education; and the right to the
protection of one's scientific, literary, and artistic production.
But in the same way that all the rights embraced by the first generation of civil and political
rights cannot properly be designated ―negative rights,‖ so all the rights embraced by the second
generation of economic, social, and cultural rights cannot properly be labeled ―positive rights.‖
For example, the right to free choice of employment, the right to form and to join trade unions,
and the right to participate freely in the cultural life of the community (Articles 23 and 27) do not
inherently require affirmative state action to ensure their enjoyment. Nevertheless, most of the
second-generation rights do necessitate state intervention because they subsume demands more
for material than for intangible goods according to some criterion of distributive justice. Second-
generation rights are, fundamentally, claims to social equality. However, partly because of the
comparatively late arrival of socialist-communist and compatible ―Third World‖ influence in
international affairs, the internationalization of these rights has been relatively slow in coming,
and with free-market capitalism in ascendancy under the banner of globalization at the turn of
the 21st century, it is not likely that these rights will come of age any time soon. On the other
hand, as the social inequities created by unregulated national and transnational capitalism
become more and more evident over time and are not accounted for by explanations based on
gender or race, it is probable that the demand for second-generation rights will grow and mature,
and in some instances even lead to violence. This tendency is apparent already in the evolving
European Union and in wider efforts to regulate intergovernmental financial institutions and
transnational corporations to protect the public interest.
Third generation: Solidarity rights (Fraternité):

Finally, the third generation of solidarity rights, while drawing upon and reconceptualizing the
demands associated with the first two generations of rights, is best understood as a product of

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both the rise and the decline of the nation-state in the last half of the 20th century. Foreshadowed
in Article 28 of the Universal Declaration of Human Rights, which proclaims that ―everyone is
entitled to a social and international order in which the rights set forth in this declaration can be
fully realized,‖ this generation appears so far to embrace six claimed rights. Three of these rights
reflect the emergence of Third World nationalism and its ―revolution of rising expectations‖ (i.e.,
its demand for a global redistribution of power, wealth, and other important values or
capabilities): the right to political, economic, social, and cultural self-determination; the right to
economic and social development; and the right to participate in and benefit from ―the common
heritage of mankind‖ (shared Earth and space resources, scientific, technical, and other
information and progress, and cultural traditions, sites, and monuments). The other three third-
generation rights—the right to peace, the right to a healthy and sustainable environment, and the
right to humanitarian disaster relief—suggest the impotence or inefficiency of the nation-state in
certain critical respects.
All six of these rights tend to be posed as collective rights, requiring the concerted efforts of all
social forces, to a substantial degree on a planetary scale. However, each of them also manifests
an individual dimension. For example, while it may be said to be the collective right of all
countries and peoples (especially developing countries and non-self-governing peoples) to secure
a ―new international economic order‖ that would eliminate obstacles to their economic and social
development, so also may it be said to be the individual right of every person to benefit from a
developmental policy that is based on the satisfaction of material and nonmaterial human needs.
It is important to note too that the majority of these solidarity rights are more aspirational than
justiciable in character and that their status as international human rights norms remains
ambiguous.
Thus, at various stages of modern history, the content of human rights has been broadly defined
not with any expectation that the rights associated with one generation would or should become
outdated upon the ascendancy of another, but expansively or supplementally. The history of the
content of human rights reflects evolving perceptions of which values or capabilities stand, at
different times, most in need of responsible attention and, simultaneously, humankind's recurring
demands for continuity and stability.
(D) LEGITIMACY AND PRIORITY: LIBERTÉ VERSUS ÉGALITÉ

The fact that the content of human rights has been broadly defined should not be taken to imply
that the three generations of rights are equally acceptable to everyone. Nor should it suggest that
they or their separate elements have been greeted with equal urgency. The debate about the
nature and content of human rights reflects, after all, a struggle for power and for favoured
conceptions of the ―good society.‖

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First-generation proponents, for example, are inclined to exclude second- and third-generation
rights from their definition of human rights altogether or, at best, to regard them as ―derivative.‖
In part this is because of the complexities involved in putting these rights into operation. The
suggestion that first-generation rights are more feasible because they stress the absence over the
presence of government is somehow transformed into a prerequisite of a comprehensive
definition of human rights, such that aspirational claims to entitlement are deemed not to be
rights at all. The most compelling explanation, however, has more to do with ideology or
politics. Persuaded that egalitarian claims against the rich, particularly where collectively
espoused, are unworkable without a severe decline in liberty and equality, first-generation
proponents, inspired by the natural law and laissez-faire traditions, are partial to the view that
human rights are inherently independent of organized society and are individualistic.
Conversely, second- and third-generation defenders often look upon first-generation rights, at
least as commonly practiced, as insufficiently attentive to material—especially ―basic‖—human
needs and, indeed, as instruments in service to unjust social orders, hence constituting a
―bourgeois illusion.‖ Accordingly, if they do not place first-generation rights outside their
definition of human rights, they tend to assign such rights a low status and to treat them as long-
term goals that will come to pass only after the imperatives of economic and social development
have been met, to be realized gradually and fully achieved only sometime vaguely in the future.
This liberty-equity and individualist-collectivist debate was especially evident during the period
of the Cold War, reflecting the extreme tensions that then existed between Liberal and Marxist
conceptions of sovereign public order. Although Western social democrats during this period,
particularly in Scandinavia, occupied a position midway between the two sides, pursuing both
liberty and equity—in many respects successfully—it remains true that the different conceptions
of rights contain the potential for challenging the legitimacy and supremacy not only of one
another, but, more importantly, of the sociopolitical systems with which they are most intimately
associated.
The relevance of custom and tradition

With the end of the Cold War, however, the debate took on a more North-South character and
was supplemented by a cultural-relativist critique that eschews the universality of human rights
doctrines, principles, and rules on the grounds that they were Western in origin and therefore of
limited relevance in non-Western settings. The viewpoint underlying this assertion—that the
scope of human rights in any given society is fundamentally determined by local, national, or
regional customs and traditions—may seem problematic, especially when one considers that the
idea of human rights and many of its precepts are found in all the great philosophical and
religious traditions. Nevertheless, the historical development of human rights demonstrates that it
cannot be wholly mistaken. Nor is it surprising that it should emerge soon after the end of the
Cold War. First prominently expressed at an Asian meeting preparatory to the second UN World

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Conference on Human Rights convened in Vienna in June 1993, it reflects the end of a bipolar
system of alliances that had discouraged independent foreign policies and minimized cultural and
political differences in favour of undivided Cold War loyalties. Against the backdrop of
increasing human rights interventionism on the part of the UN and by regional organizations and
deputized coalitions of states (as in Bosnia and Herzegovina, Somalia, Liberia, Rwanda, Haiti,
and Serbia and Kosovo, for example), the viewpoint serves also as a functional equivalent of the
doctrine of respect for national sovereignty and territorial integrity, which had been declining in
influence not only in the human rights context but also in the contexts of national security,
economics, and the environment. As a consequence, there remains sharp disagreement about the
legitimate scope of human rights and about the priorities that are claimed among them.
Inherent risks in the debate

On final analysis, however, this legitimacy-priority debate can be dangerously misleading.
Although useful for pointing out how notions of liberty and individualism have been used to
rationalize the abuses of capitalism and Western expansionism and how notions of equality,
collectivism, and culture have been alibis for authoritarian governance, in the end it risks
obscuring at least three essential truths that must be taken into account if the contemporary
worldwide human rights movement is to be objectively understood.
First, one-sided characterizations of legitimacy and priority are very likely, at least over the long
term, to undermine the political credibility of their proponents and the defensibility of the rights
they regard as preeminently important. In an increasingly interdependent global community, any
human rights orientation that does not support the widest possible shaping and sharing of values
or capabilities among all human beings is likely to provoke widespread skepticism. The last half
of the 20th century is replete with examples.
Second, such characterizations do not accurately reflect reality. In the real world, virtually all
societies, whether individualistic or collectivist in essential character, consent to, and even
promote, a mixture of all basic values or capabilities. President Franklin Delano Roosevelt's Four
Freedoms (freedom of speech and expression, freedom of worship, freedom from want, and
freedom from fear) is an early case in point. A more recent demonstration is found in the
Declaration and Programme of Action of the Vienna conference mentioned above, adopted by
representatives of 171 states. It proclaims that, ―[w]hile the significance of national and regional
particularities and various historical, cultural and religious backgrounds must be borne in mind,
it is the duty of States, regardless of their political, economic and cultural systems, to promote
and protect all human rights and fundamental freedoms.‖
Finally, none of the international human rights instruments currently in force or proposed says
anything about the legitimacy or priority of the rights it addresses, save possibly in the case of
rights that by international covenant are stipulated to be ―nonderogable‖ and therefore, arguably,

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more fundamental than others (e.g., freedom from arbitrary or unlawful deprivation of life,
freedom from torture and from inhuman or degrading treatment and punishment, freedom from
slavery, and freedom from imprisonment for debt). To be sure, some disagreements about
legitimacy and priority can derive from differences of definition (e.g., what is ―torture‖ or
―inhuman treatment‖ to one may not be so to another, as in the case of punishment by caning or
by death). Similarly, disagreements also can arise when treating the problem of implementation.
For instance, some insist first on certain civil and political guarantees, whereas others defer
initially to conditions of material well-being. Such disagreements, however, reflect differences in
political agendas and have little if any conceptual utility. As confirmed by numerous resolutions
of the UN General Assembly and reaffirmed in the Vienna Declaration and Programme of
Action, there is a growing consensus that all human rights form an indivisible whole and that the
protection of human rights is not and should not be a matter of purely national jurisdiction. The
extent to which the international community actually protects the human rights it prescribes, on
the other hand, is a different matter.
(E) INTERNATIONAL HUMAN RIGHTS: PRESCRIPTION AND ENFORCEMENT
Developments before World War II

Ever since ancient times, but especially since the emergence of the modern state system, the Age
of Discovery, and the accompanying spread of industrialization and European culture throughout
the world, there has developed, for economic and other reasons, a unique set of customs and
conventions regarding the humane treatment of foreigners. This evolving International Law of
State Responsibility for Injuries to Aliens, as these customs and conventions came to be called,
represents the beginning of active concern—however much they served the interests of colonial
expansion—for human rights on the international plane. The founding fathers of international
law—particularly Francisco de Vitoria, Grotius, and Emmerich de Vattel—were quick to
observe that all persons, outlander as well as other, were entitled to certain natural rights, and
they emphasized, consequently, the importance of according aliens fair treatment.
With the exception of occasional treaties to secure the protection of Christian denominations, it
was not until the start of the 19th century, however, that active international concern for the
rights of nationals began to make itself felt. Then, in the century and a half before World War II,
several noteworthy efforts to encourage respect for nationals by international means began to
shape what today is called the International Law of Human Rights (which for historical but no
theoretically convincing reasons was treated separately from the International Law of State
Responsibility for Injuries to Aliens).
Throughout the 19th and early 20th centuries, numerous military operations and diplomatic
representations, not all of them with the purest of motives but performed nonetheless in the name
of ―humanitarian intervention‖ (a customary international law doctrine), undertook to protect

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oppressed and persecuted minorities in the Ottoman Empire, Syria, Crete, various Balkan
countries, Romania, and Russia. Paralleling these actions, first at the Congress of Vienna (1814–
15) and later between the two World Wars, a series of treaties and international declarations
sought the protection of certain racial, religious, and linguistic minorities in central and eastern
Europe and the Middle East. During the same period, the movement to combat and suppress
slavery and the slave trade found expression in treaties sooner or later involving the major
commercial powers, beginning with the Treaty of Paris (1814) and culminating in the
International Slavery Convention (1926).
In addition, beginning in the late 19th century and continuing well beyond World War II, the
community of nations, inspired largely by persons associated with what is now the International
Committee of the Red Cross, concluded a series of multilateral declarations and agreements
designed to temper the conduct of hostilities, protect the victims of war, and otherwise elaborate
the humanitarian law of war (now commonly referred to as International Humanitarian Law). At
about the same time, first with two multilateral labour conventions concluded in 1906 and
subsequently at the initiative of the International Labour Organisation (ILO; established in
1919), a reformist-minded international community embarked upon a variety of collaborative
measures directed at the promotion of human rights. These measures addressed not only
concerns traditionally associated with labour law and labour relations (e.g., industrial health and
safety, hours of work, and annual paid holidays), but also—mainly after World War II—such
core human rights concerns as forced labour, discrimination in employment and occupation,
freedom of association for collective bargaining, and equal pay for equal work.
Finally, during the interwar period, the covenant establishing the League of Nations (1919)—
though not formally recognizing ―the rights of Man‖ and failing to lay down a principle of racial
nondiscrimination as requested by Japan (owing mainly to the resistance of Great Britain and the
United States)—nevertheless committed its members to several human rights goals: fair and
humane working conditions, the execution of agreements regarding trafficking in women and
children, the prevention and control of disease in matters of international concern, and the just
treatment of indigenous colonial peoples. Also, the victorious powers—who as ―mandatories‖
were entrusted by the League with the tutelage of colonies formerly governed by Germany and
Turkey—accepted responsibility for the well-being and development of the inhabitants of those
territories as ―a sacred trust of civilization.‖ This arrangement was later carried over into the
trusteeship system of the United Nations.
As important as these efforts were, however, it was not until after the war—and the Nazi
atrocities accompanying it—that active concern for human rights truly came of age
internationally. In the proceedings of the International Military Tribunal at Nürnberg in 1945–46
(the Nürnberg trials), German high officials were tried not only for ―crimes against peace‖ and
―war crimes‖ but also for ―crimes against humanity‖ committed against civilian populations,

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even if the crimes were in accordance with the laws of the country in which they were
perpetrated. Although the tribunal, whose establishment and rulings subsequently were endorsed
by the UN General Assembly, applied a cautious approach to allegations of crimes against
humanity, it nonetheless made the treatment by a state of its own citizens the subject of
international criminal process. The ad hoc international criminal tribunals established in 1993–94
for the prosecution of serious violations of International Humanitarian Law in the former
Yugoslavia and in Rwanda were its first heirs on the international plane. Both courts were
empowered to impose sentences of life imprisonment (though not the death penalty), and both
focused their efforts, with some success, on political leaders who had authorized human rights
abuses. Most conspicuous was the arrest and detention in June 2001 of former Yugoslav
president Slobodan Milošević by the International Criminal Tribunal for Yugoslavia,
representing the first time a former head of state has been placed in the physical custody of an
international judicial authority. The tribunal charged him with war crimes and crimes against
humanity allegedly committed by Serbian forces in Kosovo in 1999 and subsequently with the
crime of genocide allegedly committed by Serbian forces during the war in Bosnia and
Herzegovina in 1992–95.
Also heir to the Nürnberg tribunal is the International Criminal Court, authorized by the adoption
by 160 countries of the Rome Statute of the International Criminal Court in July 1998. The
statute creates a permanent international criminal court whose jurisdiction includes crimes
against humanity, crimes of genocide, war crimes, and crimes of ―aggression‖ (pending the
adoption of an acceptable definition of that term). However, the creation of the court, which
depends on the ratification of the statute by at least 60 signatory states, was resisted by some
countries, notably the United States, on the ground that it would unduly infringe upon their
national sovereignty. The long-term future of the court is therefore uncertain.
Human rights in the United Nations

The Charter of the United Nations (1945) begins by reaffirming a ―faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women and
of nations large and small.‖ It states that the purposes of the UN are, among other things: to
develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples…[and] to achieve international co-operation…in promoting and
encouraging respect for human rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion.
In addition, in two key articles all members ―pledge themselves to take joint and separate action
in co-operation with the Organization‖ for the achievement of these and related purposes. It must
be noted, however, that a proposal to ensure the protection as well as the promotion of human
rights was explicitly rejected at the Charter-drafting San Francisco conference establishing the
UN. Also, the Charter expressly provides that nothing in it ―shall authorize the United Nations to

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intervene in matters which are essentially within the domestic jurisdiction of any state,‖ except
upon a Security Council finding of a ―threat to the peace, breach of the peace, or act of
aggression.‖ Furthermore, though typical of major constitutive instruments, the Charter is
conspicuously given to generality and vagueness in its human rights clauses, among others.
Thus, not surprisingly, the reconciliation of the Charter's human rights provisions with the
history of its drafting and its ―domestic jurisdiction‖ clause has given rise to legal and political
controversy. Some authorities have argued that, in becoming parties to the Charter, states accept
no more than a nebulous promotional obligation toward human rights and that, in any event, the
UN has no standing to insist on human rights safeguards in member states. Others have insisted
that the Charter's human rights provisions, being part of a legally binding treaty, clearly involve
some element of legal obligation; that the ―pledge‖ made by states upon becoming party to the
Charter consequently represents more than a moral statement; and that the domestic jurisdiction
clause does not apply because human rights no longer can be considered a matter ―essentially
within the domestic jurisdiction‖ of states.
When all is said and done, however, it is clear from the actual practice of the UN that the
problem of resolving these opposing contentions has proved less formidable than the statements
of governments and the opinions of scholars would suggest. Neither the Charter's drafting history
nor its domestic jurisdiction clause—nor, indeed, its generality and vagueness in respect of
human rights—has prevented the UN from investigating, discussing, and evaluating specific
human rights situations. Nor have they prevented it from taking concrete action in relation to
them—at least not in the case of ―a consistent pattern of gross violations,‖ as in the Security
Council's imposition of a mandatory arms embargo against South Africa in 1977 and its
authorization of the use of military force to end human rights abuses in Somalia and Haiti in the
early 1990s. Of course, governments usually are protective of their sovereignty, or domestic
jurisdiction. Also, the UN organs responsible for the promotion and protection of human rights
suffer from most of the same disabilities that afflict the UN as a whole, in particular the absence
of supranational authority, the presence of divisive power politics, and the imposition of
crippling financial constraints by member states (most notably the United States). Hence, it
cannot be expected that UN actions in defense of human rights will be, normally, either swift or
categorically effective. Indeed, many serious UN efforts at human rights implementation have
been deliberately thwarted by the major powers. In 1999, for example, opposition by China and
Russia prevented the Security Council from agreeing on forceful measures to end the persecution
by Serbia of ethnic Albanians in the province of Kosovo, prompting the United States and other
members of the North Atlantic Treaty Organization (NATO) to take matters into their own hands
through a massive bombing campaign against Serbian targets. Nevertheless, assuming some
political will, the legal obstacles to UN enforcement of human rights are not insurmountable.

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Primary responsibility for the promotion and protection of human rights under the UN Charter
rests in the General Assembly and, under its authority, in the Economic and Social Council
(ECOSOC), the Commission on Human Rights, and the UN High Commissioner for Human
Rights (UNHCHR). The UN Commission on Human Rights, an intergovernmental subsidiary
body of ECOSOC that met for the first time in 1947, serves as the UN's central policy organ in
the human rights field. The UNHCHR, a post created by the General Assembly in 1993, is the
official principally responsible for implementing and coordinating UN human rights programs
and projects, including overall supervision of the UN's Geneva-based Centre for Human Rights,
a bureau of the UN Secretariat.
The UN Commission on Human Rights and its instruments

For the first 20 years of its existence (1947–66), the UN Commission on Human Rights
concentrated its efforts on setting human rights standards, believing itself unauthorized to deal
with human rights complaints. Together with other UN bodies such as the ILO, the United
Nations Educational, Scientific and Cultural Organization (UNESCO), the UN Commission on
the Status of Women, and the Commission on Crime Prevention and Criminal Justice, it has
drafted standards and prepared a number of international human rights instruments. Among the
most important of these have been the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on
Civil and Political Rights together with its Optional Protocols (1966; 1989). Collectively known
as the ―International Bill of Human Rights,‖ these three instruments serve as touchstones for
interpreting the human rights provisions of the UN charter. Also central in this regard have been
the International Convention on the Elimination of All Forms of Racial Discrimination (CERD;
1965), the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW; 1979), the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989), each of
which elaborates on provisions of the International Bill of Human Rights.
The commission continues to perform this standard-setting role. Beginning in 1967, however, it
was specifically authorized to deal with violations of human rights, and since then it has set up
elaborate mechanisms and procedures to investigate alleged human rights violations and
otherwise monitor compliance by states with international human rights law. Thus, much of the
work of the commission is now investigatory, evaluative, and advisory in character. Each year it
establishes a working group to consider and make recommendations concerning alleged ―gross
violations‖ of human rights, reports of which are referred to it by its Sub-Commission on
Prevention of Discrimination and Protection of Minorities (on the basis of both
―communications‖ from individuals and groups and investigations by the Sub-Commission or
one of its working groups). Also, on an ad hoc basis, the commission appoints Special
Rapporteurs, Special Representatives, Special Committees, and other envoys to examine human
rights situations—both country-oriented and thematic—and report back to it on the basis of

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trustworthy evidence. These fact-finding and implementation mechanisms and procedures were
the focus of the commission's attention during the 1970s and '80s. In the 1990s the commission
increasingly turned to economic, social, and cultural rights, including the right to development
and the right to an adequate standard of living. Increased attention has been paid also to the
rights of minorities, indigenous peoples, women, and children.
The UN High Commissioner for Human Rights

Appointed by the secretary-general in a regular rotation of geographic regions and approved by
the General Assembly, the UNHCHR serves a fixed term of four years with the possibility of
renewal for an additional four-year term. The first high commissioner, José Ayala Lasso of
Ecuador, took office in April 1994, and Mary Robinson, formerly president of Ireland, became
the second high commissioner in September 1997. Among other duties, the high commissioner is
charged by the General Assembly to promote and protect all civil, political, economic, social,
and cultural rights; to provide advisory services and technical and financial assistance in the field
of human rights to states that request them; to coordinate human rights promotion and protection
activities throughout the UN system, including education and public-information programs; and
otherwise to enhance international cooperation for the promotion and protection of human
rights—all within the framework of the International Bill of Human Rights.
(F) DOCUMENTS ON HUMAN RIGHTS

The Universal Declaration of Human Rights
The catalog of rights set out in the Universal Declaration of Human Rights, which was adopted
without dissent by the General Assembly on December 10, 1948, is scarcely less than the sum of
most of the important traditional political and civil rights of national constitutions and legal
systems, including equality before the law; protection against arbitrary arrest; the right to a fair
trial; freedom from ex post facto criminal laws; the right to own property; freedom of thought,
conscience, and religion; freedom of opinion and expression; and freedom of peaceful assembly
and association. Also enumerated are such economic, social, and cultural rights as the right to
work, the right to form and join trade unions, the right to rest and leisure, the right to a standard
of living adequate for health and well-being, and the right to education.
The Universal Declaration, it should be noted, is not a treaty. It was meant to proclaim ―a
common standard of achievement for all peoples and all nations‖ rather than enforceable legal
obligations. Nevertheless, the Universal Declaration has acquired a status juridically more
important than originally intended, and it has been widely used, even by national courts, as a
means of judging compliance with human rights obligations under the UN Charter.
The International Covenant on Civil and Political Rights and its Optional Protocols
The civil and political rights guaranteed by the International Covenant on Civil and Political
Rights, which was opened for signature on December 19, 1966, and entered into force on March

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23, 1976, incorporate almost all those rights proclaimed in the Universal Declaration, including
the right to nondiscrimination but excluding the right to own property and the right to asylum.
The covenant also designates several rights that are not listed in the Universal Declaration,
among them the right of all peoples to self-determination and the right of ethnic, religious, and
linguistic minorities to enjoy their own culture, to profess and practice their own religion, and to
use their own language. To the extent that the Universal Declaration and the covenant overlap,
however, the latter is understood to explicate and to help interpret the former.
In addition, the covenant calls for the establishment of a Human Rights Committee, comprising
persons serving in their individual expert capacities, to study reports submitted by the state
parties on measures they have adopted to give effect to the rights recognized in the covenant. For
state parties that have expressly recognized the competence of the committee in this regard, the
committee also may respond to allegations by one state party that another state party is not
fulfilling its obligations under the covenant. If the committee is unable to resolve the problem,
the matter is referred to an ad hoc conciliation commission, which eventually reports its findings
on all questions of fact, plus its views on the possibilities of an amicable solution. State parties
that become party to the covenant's first Optional Protocol further recognize the competence of
the Human Rights Committee to consider and act upon communications from individuals
claiming to be victims of covenant violations. Other treaty-based organs within the UN system
that are empowered to consider grievances from individuals in a quasi-judicial manner are the
Committee on the Elimination of Racial Discrimination and the Committee on Torture, under the
1965 race discrimination and the 1984 torture conventions, respectively.
Also noteworthy is the covenant's Second Optional Protocol, which is aimed at abolishing the
death penalty worldwide. Adopted in 1989 and entered into force in 1991, it has been favourably
received in most of the countries of Western Europe and many countries in the Americas, though
not in the United States.
The International Covenant on Economic, Social and Cultural Rights

Just as the International Covenant on Civil and Political Rights elaborates upon most of the civil
and political rights enumerated in the Universal Declaration of Human Rights, so the
International Covenant on Economic, Social and Cultural Rights elaborates upon most of the
economic, social, and cultural rights set forth in the Universal Declaration: the right to work, the
right to just and favourable conditions of work, trade union rights, the right to social security,
rights relating to the protection of the family, the right to an adequate standard of living, the right
to health, the right to education, and rights relating to culture and science. Unlike its companion
agreement, the International Covenant on Civil and Political Rights, however, generally this
covenant, sometimes called a ―promotional convention,‖ is not intended for immediate
implementation, the state parties having agreed only ―to take steps‖ toward ―achieving
progressively the full realization of the rights recognized in the…Covenant,‖ and then subject to

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―the maximum of [their] available resources.‖ One obligation, however, is subject to immediate
application: the prohibition of discrimination in the enjoyment of the rights enumerated on
grounds of race, colour, sex, language, religion, political or other opinion, national or social
origin, property, and birth or other status. Also, the international supervisory measures that apply
to the covenant oblige the state parties to report to the UN Economic and Social Council on the
steps they have adopted and on the progress they have made in achieving the realization of the
enumerated rights.
Other UN human rights conventions and declarations

Numerous other human rights treaties drafted under UN auspices address a broad range of
concerns, including the prevention and punishment of the crime of genocide; the humane
treatment of military and civilian personnel in time of war; the status of refugees; the protection
of stateless persons; the abolition of slavery, forced labour, and discrimination in employment
and occupation; the suppression and punishment of the crime of apartheid; the elimination of
discrimination in education; the promotion of the political rights of women; the protection of
minorities and indigenous peoples; and the promotion of equality of opportunity and treatment
among migrant workers. In addition to overseeing human rights treaties, the UN also adopts
declarations, in the form of resolutions, aimed at promoting human rights. Although technically
not binding on member states in the sense of a treaty or a resolution of the Security Council, such
declarations—particularly when they enunciate principles of great and solemn importance—may
nevertheless create strong expectations about authority and control. Perhaps the best-known
examples subsequent to the Universal Declaration are the Declaration on the Granting of
Independence to Colonial Countries and Peoples (1960) and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations (1970), which affirms, among other things, ―the duty of
all states to refrain from organizing, instigating, assisting or participating in … terrorist acts.‖
Other declarations have addressed the rights of disabled persons; the elimination of all forms of
intolerance and discrimination based on religion or belief; the right of peoples to peace; the right
to development; the rights of persons belonging to national, ethnic, religious, and linguistic
minorities; and the elimination of violence against women.
(G) REGIONAL DEVELOPMENTS

Action for the international promotion and protection of human rights has proceeded at the
regional level in Europe, the Americas, Africa, the Middle East, and, to a minor extent, Asia.
Only the first three of these regions, however, have created enforcement mechanisms within the
framework of a human rights charter.
European human rights system
On November 4, 1950, the Council of Europe agreed to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the substantive provisions of which are

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based on a draft of what is now the International Covenant on Civil and Political Rights.
Together with its 11 additional protocols, this convention, which entered into force on September
3, 1953, represents the most advanced and successful international experiment in the field to
date. Over the years, the enforcement mechanisms created by the convention have developed a
considerable body of case law on questions regulated by the convention, which the state parties
typically have honoured and respected. In some European states the provisions of the convention
are deemed to be part of domestic constitutional or statutory law. Where this is not the case, the
state parties have taken other measures to make their domestic laws conform with their
obligations under the convention.
Notwithstanding these successes, a significant streamlining of the European human rights regime
took place on November 1, 1998, when Protocol No. 11 to the convention entered into force.
Pursuant to the protocol, two of the enforcement mechanisms created by the convention—the
European Commission of Human Rights and the European Court of Human Rights—were
merged into a reconstituted court, which now is empowered to hear individual (as opposed to
interstate) petitions or complaints without the prior approval of the local government. The
decisions of the court are final and binding on the state parties to the convention.
A companion instrument to the European Convention—similar to but preceding the International

Covenant on Economic, Social and Cultural Rights—is the European Social Charter (1961) and
its additional protocol (1988). In contrast to the adjudicatory enforcement procedures of the
European Convention, the charter's provisions are implemented through an elaborate system of
control based on progress reports to the various committees and organs of the Council of Europe.
In July 1996 the Revised Social Charter, which modernizes its forebear's substantive provisions
and strengthens its enforcement capabilities, entered into force. Both charters have suffered from
a notable lack of public awareness, however, and this fact, together with an increased emphasis
on market-oriented economic policies in many European countries, threatens not only the
ratification of the 1996 charter but, as well, the political commitment to the several and joint
aims of each treaty.
Inter-American human rights system

In 1948, concurrent with its establishment of the Organization of American States (OAS), the
Ninth Pan-American Conference adopted the American Declaration on the Rights and Duties of
Man, which, unlike the Universal Declaration of the UN adopted seven months later, set out the
duties as well as the rights of individual citizens. Subsequently, in 1959, a meeting of the
American Ministers for Foreign Affairs created the Inter-American Commission on Human
Rights, which has since undertaken important investigative activities in the region. Finally, in
1969, the Inter-American Specialized Conference on Human Rights adopted the American
Convention on Human Rights, which, among other things, after entering into force in July 1978,
made the existing Inter-American Commission an organ of the convention and established the

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Inter-American Court of Human Rights, which sits in San José, Costa Rica. In November 1988,
the OAS adopted the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights. Of the 26 Western Hemispheric states that so far
have signed the convention, only the United States has yet to ratify it. Nor is the United States a
party to the additional protocol, which entered into force in November 1999.
The core structure of the Inter-American human rights system is similar to that of its European
counterpart. Nevertheless, some noteworthy differences exist, and three stand out in particular.
First, as noted above, the American convention, reflecting the influence of the American
Declaration, acknowledges the relationship between individual duties and individual rights.
Second, the American convention reverses the priorities of the European convention prior to
Protocol No. 11 by guaranteeing individual petitions while making interstate complaints
optional. Finally, both the Inter-American Commission and the Inter-American Court operate
beyond the framework of the American convention. The commission is as much an organ of the
OAS Charter as of the American convention, with powers and procedures that differ significantly
depending on the source of the commission's authority. The court, while primarily an organ of
the convention, nonetheless has jurisdiction to interpret the human rights provisions of other
treaties, including those of the OAS Charter.
African Human Rights System

In 1981 the Eighteenth Assembly of Heads of State and Government of the Organization of
African Unity (replaced by the African Union [AU] in 2002) adopted the African Charter on
Human and Peoples' Rights. Also known as the ―Banjul Charter‖ for having been drafted in
Banjul, Gambia, it entered into force on October 21, 1986, and boasts the vast majority of the
states of Africa as parties.
Like its American and early European counterparts, the African Charter provides for a human
rights commission, which has both promotional and protective functions. There is no restriction
on who may file a complaint with it. In contrast to the European and American procedures,
however, concerned states are encouraged to reach a friendly settlement without formally
involving the investigative or conciliatory mechanisms of the commission. Also, the African
Charter does not, at present, call for a human rights court. African customs and traditions, it has
been said, emphasize mediation, conciliation, and consensus rather than the adversarial and
adjudicative procedures that are common to Western legal systems. Nevertheless, owing largely
to political changes wrought by the end of the Cold War, planning for an African Court of
Human Rights was begun in the late 1990s. As envisioned, the court would not replace the
commission but would supplement and reinforce its mandate.
Four other distinctive features of the African Charter are noteworthy. First, it provides for
economic, social, and cultural rights as well as civil and political rights. In this respect it

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resembles the American convention and differs from the European convention. Second, in
contrast to both the European and American conventions, it recognizes the rights of groups in
addition to the family, women, and children. The aged and the infirm are accorded special
protection also, and the right of peoples to self-determination is elaborated in the right to
existence, equality, and nondomination. Third, it uniquely embraces two third-generation, or
―solidarity,‖ rights: the right to economic, social, and cultural development and the right to
national and international peace and security. Finally, it is to date the only treaty instrument to
detail individual duties as well as individual rights—to the family, society, the state, and the
international African community. Nevertheless, in view of the turmoil that beset northern and
sub-Saharan Africa at the end of the 20th century, it is fair to say that the African human rights
system is still in its infancy.
Middle Eastern and Asian human rights systems

The Permanent Arab Commission on Human Rights, founded by the Council of the League of
Arab States in September 1968, has been preoccupied primarily with the rights of Arabs living in
Israeli-occupied territories. Functioning more to promote than to protect human rights, at the end
of the 1990s it had yet to bring a proposed Arab Convention on Human Rights to a successful
conclusion. Nevertheless, work by other intergovernmental and nongovernmental bodies
manifested a continuing desire to establish human rights protection mechanisms in the Middle
East. Building on the Universal Islamic Declaration of Human Rights (1981) and the Cairo
Declaration on Human Rights in Islam (1990), the League of Arab States approved an Arab
Charter on Human Rights in September 1994. The charter provides for periodic reports to the
league's Human Rights Committee by state parties and for an independent Committee of Experts
apparently empowered to request and study reports and submit its own findings to the Human
Rights Committee. No other institutions or procedures for monitoring human rights are specified
in the charter, however. More so than in most other regions of the world (except Asia), the states
of the Middle East were greatly divided over the need to enforce human rights law and the
desirability of achieving a true regional system for the promotion and protection of human rights.
In Asia, despite efforts by NGOs and the United Nations, the states of the region have been at
best ambivalent—and at worst hostile—to human rights concerns, thus precluding agreement on
almost all regional human rights initiatives. In early 1993, anticipating the Vienna World
Conference on Human Rights later that year, a conference of Asia-Pacific NGOs adopted an
Asia-Pacific Declaration of Human Rights, and in 1997 another meeting of NGOs adopted an
Asian Human Rights Charter. Both of these initiatives supported the universality and
indivisibility of human rights. However, whereas the first initiative called for the creation of a
regional human rights regime, the second—seemingly in deference to the cultural diversity and
vastness of the region—urged instead the establishment of national human rights commissions
and so-called ―People's Tribunals,‖ which would be based more on moral and spiritual
foundations rather than on legal ones. The states of Asia were slow to respond to these

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recommendations. Their positions were indicated at a UN-sponsored workshop in 1996, where

the 30 participating states concluded that ―it was premature … to discuss specific arrangements
relating to the setting up of a formal human rights mechanism in the Asian and Pacific region.‖
The same states agreed, however, to ―[explore] the options available and the process necessary
for establishing a regional mechanism.‖ It remains to be seen whether the economic and political
crises that beset Asia at the end of the 20th century will stimulate efforts to ensure greater respect
for human rights through regional cooperation.
(H) INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS

Using domestic courts to clarify and safeguard international human rights is a new and still
evolving approach to human rights advocacy. In addition to the inevitable interpretative
problems involved in applying norms that are fashioned in multicultural settings, controversial
theories about the interrelation of national and international law, as well as many procedural
difficulties, burden the human rights claimant in this setting. To be sure, considerable progress
has been made, as perhaps best evidenced in the far-reaching decision handed down by the U.S.
Court of Appeals for the 2nd Circuit in Filártiga v. Peña-Irala (1980), in which the court held that
the international prohibition of torture, because it is unequivocally established in customary
international law and applies regardless of the nationality of the victim or the perpetrator (at least
in the case of private litigants), must be honoured in U.S. courts. More recently, in 1998–99, the
United Kingdom's highest tribunal, the Law Lords of the British House of Lords, captured
international attention when, in response to an extradition request by a Spanish court, it upheld
the arrest in England of former Chilean president Augusto Pinochet on charges of torture and
conspiracy to commit torture in violation of international treaty law. Although Pinochet was later
returned to Chile and declared by a Chilean court to be mentally unfit to stand trial, the Law
Lords' ruling established the precedent that former heads of state do not enjoy immunity from
prosecution, at least for systematic human rights crimes.
(I) HUMAN RIGHTS AT THE TURN OF THE 21ST CENTURY

Whatever the current attitudes and policies of governments, the reality of popular demands for
human rights, including both greater economic justice and greater political freedom, is beyond
debate. A deepening and widening concern for the promotion and protection of human rights on
all fronts, hastened by the ideal of self-determination in a postcolonial era, is now unmistakably
woven into the fabric of contemporary world affairs. Substantially responsible for this
progressive development has been the work of the UN, its allied agencies, and such regional
organizations as the Council of Europe, the OAS, and the AU. Also contributing to this
development, particularly since the 1970s and '80s, have been five other salient factors:
(1) the public advocacy of human rights as a key aspect of national foreign policies, made
initially legitimate by the example of U.S. President Jimmy Carter,
(2) the emergence and spread of civil society on a transnational basis, primarily in the form
of activist nongovernmental human rights organizations such as Amnesty International,

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Interights, and Human Rights Watch, the International Commission of Jurists, and
diverse faith-based and professional groups,
(3) a worldwide profusion of teaching and research devoted to the study of human rights in
both formal and informal settings,
(4) the proliferation of large UN conferences in areas such as children's rights, population,
social development, women's rights, human settlements, and food production and
distribution, and
(5) a mounting feminist intellectual and political challenge regarding not only the rights of
women worldwide, but also what feminists consider the paternalistic myths and myth
structures that purport to define humane governance generally.
To be sure, because the application of international human rights law depends for the most part
on the voluntary consent of nations, formidable obstacles attend the endeavours of human rights
policy makers, activists, and scholars. Human rights conventions continue to be undermined by
the failure of states to ratify them and by emasculating reservations and derogations, by self-
serving reporting systems that outnumber objective complaint procedures, and by poor financing
for the implementation of human rights prescriptions. In short, the mechanisms for the
enforcement of human rights are still in their infancy. Nevertheless, it is certain that, out of
necessity no less than out of realism, a palpable concern for the advancement of human rights is
here to stay.
Reading Material
1. Ian Brownlie (ed.), Basic Documents on Human Rights, 3rd ed. (1992);
2. Philip Alston (ed.), The United Nations and Human Rights: A Critical Appraisal (1992);
3. Abdullahi Ahmed An-Na‗im (ed.), Human Rights in Cross-Cultural Perspectives (1992);
4. Theodor Meron (ed.), Human Rights in International Law: Legal and Policy Issues, 2 vol.
(1984, reprinted 1992);
5. Karel Vasak and Philip Alston (eds.), The International Dimensions of Human Rights, 2 vol.,
trans. from French (1982);
6. Burns H. Weston and Stephen P. Marks, The Future of International Human Rights (1999),
7. Richard Gittleman, ―The African Charter on Human and Peoples' Rights: A Legal Analysis,‖
Virginia Journal of International Law, 22(4):667–714 (Summer 1982).
8. Vitit Muntarbhorn, ―Asia, Human Rights, and the New Millennium: Time for a Regional
Human Rights Charter?‖, Transnational Law and Contemporary Problems, 8(2):359–405
(1998),
9. Hassan Moinuddin, The Charter of the Islamic Conference and Legal Framework of
Economic Cooperation Among its Member States (1987);
10. Issa G. Shivji, The Concept of Human Rights in Africa (1989);

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CHAPTER 18
LAW OF INTERNATIONAL INSTITUTION
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(A) Definition and Characteristics of International Institutions

(B) Kinds of International Institutions
(C) Nature and Scope of the activities of International Institutions
(D) Significance of International Institutions
(E) History of International Institutions in Pre Second World War
(F) Structure of International Institutions
(G) Supra-nationalism in International Institutions
(A) DEFINITION AND CHARACTERISTICS OF INTERNATIONAL

INSTITUTIONS
An international organization (IO) or Institution is an organization with an international
membership, scope, or presence. The international institutions are those Institutions drawing
membership from at least three states, having activities in several states, and whose members are
held together by a formal agreement. In general international organizations are based on
multilateral treaties between at least two sovereign nation-states. The formation of an initially
fairly loose bond among the participants is generally fortified by the development of more or less
stringent institutional structures and organs to pursue certain more or less clearly defined
common aims in the international arena. IOs can either have a global or a regional character,
with the latter in general displaying a more centralized structure due to the limited number of
regional state actors available. While many IOs are single issue organizations, others focus their
attention on a multitude of issues. IOs can either be open to new members or consist of a closed
system. On occasion IOs are established for certain duration as specified in their respective
charters, but more often than not no time restriction is applied.
(B) KINDS OF INTERNATIONAL ORGANIZATION

The Union of International Associations, a coordinating body, differentiates between the more
than 250 international governmental organizations (IGOs), which have been established by
intergovernmental agreements and whose members are states, and the approximately 6,000
nongovernmental organizations (NGOs), whose members are associations or individuals. The
Penguin Dictionary of International Relations divides modern international organizations into
two "basic types, the 'public' variety known as intergovernmental organizations (IGOs) and the
'private' variety, the international non-governmental organization (INGOs).176
1. International nongovernmental organizations (INGOs): non-governmental organizations
(NGOs) that operate internationally. These may be either:
176
Evans, Graham, and Richard Newnham. Penguin Dictionary of International Relations. Penguin, 1998, p. 270.

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a. International non-profit organizations. Examples include the World Organization of

the Scout Movement, International Committee of the Red Cross and Médecins Sans
Frontières.
b. International corporations, referred to as multinational corporations. Examples
include The Coca-Cola Company and Toyota.
2. Intergovernmental organizations, also known as international governmental organizations
(IGOs): the type of organization most closely associated with the term 'international
organization', these are organizations that are made up primarily of sovereign states (referred
to as member states). Notable examples include the United Nations (UN), European Union
(EU; which is a prime example of a supranational organization), and World Trade
Organization (WTO). The UN has used the term "intergovernmental organization" instead of
"international organization" for clarity177.
IGOs range in size from three members to more than 185 (e.g., UN), and their geographic
representation varies from one world region (e.g., the Organization of American States) to all
regions (e.g., the International Monetary Fund). Whereas some IGOs are designed to achieve a
single purpose (e.g., the World Intellectual Property Organization), others have been developed
for multiple tasks (e.g., the North Atlantic Treaty Organization). Their organizational structures
can be simple or highly complex depending on their size and tasks.
In some of the older literature IOs tend to be subdivided into political and apolitical
organizations, the former referring to military and political alliances to further the power of their
member states and the latter referring to organizations dealing with mere administrative and
technical issues. However, in the last few decades of the twentieth century many of the allegedly
technical and "apolitical" sub-organizations of the United Nations (for example, the Atomic
Energy Commission and the World Health Organization), as well as such wide ranging entities
as the International Olympic Committee, the International Monetary Fund, and even many large
multinational corporations, developed into highly politicized organizations with a multitude of
political aims. The differentiation between political and technical IOs is therefore unhelpful. It
makes much more sense to differentiate between international governmental organizations
(IGOs) like the United Nations, NATO, the IMF, and the World Bank, to name some of the best-
known ones, and international nongovernmental organizations (INGOs) like Amnesty
International and the International Red Cross. Although estimates differ profoundly, at the turn
of the twenty-first century at least five hundred IGOs and eleven thousand INGOs were in
existence. They were organized in the Union of International Organizations (founded 1907),
which is based in Brussels and publishes the annual Yearbook of International Organizations.
177
Intergovernmental organizations having received a standing invitation to participate as observers in the sessions
and the work of the General Assembly and maintaining permanent offices at Headquarters." United Nations
Department of Public Information, United Nations Secretariat.

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While INGOs help to clarify international rules and regulations that enable at least two societal
actors (parties, issue groups, unions, associations, international businesses, and corporations) to
cooperate in the coordination of certain specified transnational and cross-border issues, IGOs,
with which this essay is mostly concerned, are based on the cooperation of nation-states. An IGO
is usually based on a multilateral treaty of two or more sovereign nation-states for the pursuit of
certain common aims in the international arena. It is helpful to differentiate between
supranational or semi-supranational IGOs, like the European Union, or looser confederations of
states and non-supranational IGOs, like the United Nations and NATO. While the former limit
the sovereignty of the participating nations to a lesser or greater degree, the latter normally do
not infringe on the sovereignty of their member states; they therefore tend to have only a limited
degree of influence over their members. Despite the equality of recognized nation-states in
international law, in fact a hierarchy of power and influence exists even within non-supranational
IGOs. The UN Security Council, dominated by its five permanent members, as well as the IMF,
the World Bank, and many other IOs, are all dominated by the established great powers, not least
on account of their political and military influence and capabilities as well as their financial and
economic clout. With the exception of China and Russia, the influential powers of the early
twenty-first century all come from the ranks of the West.
There are some institutionalized meetings and conferences that can easily be mistaken as IGOs.
Among these are the increasingly controversial G7/G8 meetings of developed nations and the
meetings of the World Trade Organization as well as summit meetings between heads of states
and, for example, the Conference on Security and Cooperation in Europe (CSCE), which played
such an important role in overcoming the Cold War. In fact they are not IGOs; instead these
loose organizational structures are only very temporary alliances of a hybrid nature. But they are
increasingly important and, in addition to the IGOs and INGOs, must be characterized as a
third—albeit no less ambiguous and still largely unexplored—actor in international diplomacy.
(H) HISTORY OF INTERNATIONAL INSTITUTIONS

Development in Pre Second World War
Although nascent international organizations were formed by Greek city-states and were
envisioned by European writers such as Pierre Dubois (c. 1250–c. 1320) and Émeric Crucé (c.
1590–1648), they did not appear in their contemporary form until the 19th century. Following
the French Revolution and the Napoleonic wars of the late 18th and early 19th centuries, leaders
of the major European powers met periodically, in a system of consultation known as the
Concert of Europe, to attempt to preserve the status quo and to protect their governments from
internal rebellion. Later in the 19th century, various international organizations, such as the
International Telegraph Union (1865; now the International Telecommunication Union), were
established to provide specialized services and to perform specific tasks. In 1899 and 1907
European and non-European states met to develop rules to regulate armaments and the conduct
of war. These conferences produced the Hague Conventions, which included agreements on the

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peaceful settlement of war, the treatment of prisoners of war, and the rights of neutral states.
These various meetings and agreements served as precursors to the international organizations of
the 20th century, such as the League of Nations and the United Nations (UN). Spurred by the
political and economic interdependencies and advances in communication and transportation that
developed after World War II, the UN became the centerpiece of a network of international
organizations.
There were few international organizations in the 19th century, only a few existed before 1850;
but now several thousand are active in the early 21st century. Some are intergovernmental (e.g.,
the United Nations), and some are nongovernmental (e.g., Amnesty International). Some have
multiple worldwide or regional purposes (e.g., the European Union), and some have single
purposes (e.g., the World Intellectual Property Organization). One effect of their proliferation is
a stronger sense of interdependence among states, which in turn has stimulated recognition of the
need for cooperation to address international and global problems.
Development after Second World War
(I) NATURE AND SCOPE OF THE ACTIVITIES OF INTERNATIONAL

INSTITUTIONS
International organizations serve many diverse functions, including collecting information and
monitoring trends (e.g., the United Nations Environment Programme), delivering services and
aid (e.g., the World Health Organization), and providing forums for bargaining (e.g., the
European Union) and settling disputes (e.g., the World Trade Organization). By providing
political institutions through which states can work together to achieve common objectives,
international organizations can help to foster cooperative behaviour. IGOs also serve useful
purposes for individual states, which often use them as instruments of foreign policy to
legitimate their actions and to constrain the behaviour of other states.
Although the daily operations of most international organizations are managed by specialized
international bureaucracies, ultimate authority rests with state members. IGOs often work closely
with other organizations, including NGOs (e.g., Greenpeace and Amnesty International), which
serve many of the same functions as their IGO counterparts and are particularly useful for
mobilizing public support, monitoring the effectiveness of international aid, and providing
information and expertise. Although many of the thousands of NGOs direct their activities
toward less developed countries in Africa and Asia, some of which have authoritarian forms of
government, most of these groups are based in developed states with pluralist political systems.
Only a small fraction of NGOs are international in scope, though they have played an
increasingly important role in international relations.
SIGNIFICANCE AND ROLE OF INTERNATIONAL ORGANIZATION

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International organizations (IOs) serve as crucial forces of coordination and cooperation on many
political, economic, social, military and cultural issues. Aside from the traditional domination of
international politics by established or recently codified nation-states, IOs are important
participants of the international system. The growth of transnational IOs was greatly facilitated
by the rise of an increasing number of tenuous networks of nation-states in political, economic,
and financial affairs in early modern Europe. They began to proliferate in the course of the
nineteenth century. As will be seen, the United States first participated in the development of IOs
in a relatively minor way in the first two decades after the Civil War and in a more important
way when American statesmen attended the Hague conferences of 1899 and 1907. For much of
the twentieth century the United States remained a leading proponent of the formation and
development of IOs. Washington was even instrumental in the creation of two of the most
important IOs ever: the League of Nations founded in 1919 after World War I and the United
Nations established in 1945 at the end of World War II.
The breakdown of the international system in the 1910s and late 1930s and the global bloodshed,
devastation, and unsurpassed misery brought about by two world wars convinced the
international community, led by the United States and Britain, of the urgency for the
establishment of a new universal and cooperative order. In the course of World War II traditional
American political isolationism was marginalized to a considerable degree. Beginning with the
Atlantic Charter of 1941 and continuing with the 1944 Dumbarton Oaks and Bretton Woods
conferences, the establishment of the United Nations in 1945 and the formation of many other
international political and economic institutions, the pillars for a new multilateral order were
created. The Cold War soon added another dimension to this, which led to the shelving of the
dream of a new cooperative world order for more than four decades: the politics and culture of
bipolar containment. Genuine multilateralism was side-lined during much of the second half of
the twentieth century. Instead international institutions, in particular the General Assembly of the
United Nations, were frequently exploited as a mere talking shop and a forum for ventilating
hostile rhetoric.
From the mid-1970s, however, a cautious revival of multilateralism, in the form of the Helsinki
process inaugurated in 1975, may even have contributed to hastening the end of the Cold War in
1989–1991. The dangers of an ever increasing nuclear arms race, as well as economic and
financial globalization and, paradoxically, the simultaneous development of a politically and
culturally ever more fragmented world, once again gave IOs a crucial role as a forum for
consultation, mediation, and arbitration. In the late twentieth and early twenty-first centuries not
only globalization and fragmentation but also the influence of more sophisticated means of
transportation and communication and the increasingly transnational character of military,
political, and environmental conflicts posed entirely new challenges. Despite recurrent bouts of
political isolationism, the United States—like most other countries—recognized the impossibility
of addressing contemporary problems merely on a nation-state basis. After the end of the East-
West conflict and the gradual realignment of eastern and western Europe, this led to the

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formation of a host of new international organizations and institutions. Yet in the post–Cold War
era the policies of the United States toward international organizations remained ambiguous; a
widespread revival of both isolationism and unilateralism could be observed. However, the
unprecedented terrorist attack on the World Trade Centre and the Pentagon on 11 September
2001 had a fundamental impact on American political strategy. In the immediate wake of the
attack no one could say whether it would result in the abandonment of unilateralism, but many
policy analysts believed that it might well lead to a much greater American reengagement with
international organizations to fight global terrorism.
BASIS OF INTERNATIONAL INSTITUTION
Intellectually the development of IOs was rooted in Immanuel Kant's eighteenth-century insight
that only the "pacific federation" of liberal democratic, interdependent, and lawful republics
could overcome the inherent anarchy of the international system, as described by Thomas
Hobbes, and therefore the permanent danger of the outbreak of war. While Hobbes believed that
a strong authoritarian state and the balance of power among the world's greatest powers could
rectify this situation and provide lasting international security, Kant was not convinced. He was
in favour of the establishment of peace-creating confederations and thus, in effect, of bringing
about the interdependence of nation-states. Over time these insights developed into the
contemporary conviction that interdependent democratic states will hardly ever embark on
military action against one another. Democracy and cooperative multilateralism within (but also
outside) international organizations were thus seen as the best vehicles for the creation of a more
stable and peaceful world.
(J) STRUCTURE & ORGANS OF INTERNATIONAL ORGANIZATIONS
International organizations generally have three organs: Executive, Legislative, and Judicial.
The Executive Organ

The executive functions of an international organization are not similar to the government
powers of the modern states. Administrative powers are exercised by certain organs of the
international organizations through other agencies or states. The activities of the international
organizations can be either promotional or operational. In its promotional activity, the
international institution inspires co-operation between states. For example, the Food and
Agricultural Organization (FAO) and the World Health Organization (WHO) are primarily
promotional in their activity. The operational activities of these organizations consist of direct
performance of certain duties. Modern international institutions mostly perform promotional
activities, rather than operational activities.
The Legislative Organ

The international legislative functions are performed by some international institutions like the
General Assembly of the United Nations, the International Labor Council, and the World Health

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Assembly. But the term ‗international‘ must be understood in a restricted sense. It is true that
none of the international institutions can claim to be a world legislature. While the international
institutions perform a legislative function, they mostly do it in the form of framing conventions.
Sometimes, they might even adopt certain regulations. Even in the international field, the
technique of delegated legislation and subordinate law-making are to be found. These are mostly
in nature of making rules or regulation dealing with the details of procedure and administration.
The International Judicial Organ

International judicial functions are vested in the International Court of Justice and they may also
be vested in other International Tribunals.
(J) GENERAL FEATURES OF THE INTERNATIONAL ORGANISATIONS

Starke points out three important general features of the functions of the international
organization:
1. They are mostly promotional rather than operational.
2. Even where they are operational, they are, as a rule, empowered only to investigate or
recommend, rather than to make binding decisions.
3. In most instances, international institutions are more in the nature of international
conferences.
4. Finally, it must be noted that to understand the true nature and purpose of present-day
international institutions, it must be realized that these bodies present a practical method
whereby states have organized themselves to meet the needs and improve the welfare of
the individuals. They should not be mistaken for ―super states‖.
Though, generally, international organizations have three organs in their constitutions, there is no
separation of powers under the constitutions of most international institutions. Their organs
exercise legislative, judicial or quasi-legislative or quasi-judicial functions in the same way as
they carry out administrative or executive functions. Some of these international institutions may
not have executive organs in the strict sense of the term, as their functions may be merely
consultative and advisory.
FUNCTIONS OF INTERNATIONAL ORGANISATIONS

Regarding the functions of these international institutions, it must be noted that predominantly
their functions are ―promotional‖, being directed primarily to inspire co0operation between
states. They may take ―operational‖ activities in a direct way, only incidentally. For instance, the
United Nations Food and Agricultural Organization or the World Health Organization has
function which is predominantly promotional rather than operational. Further, it must be noted
that even when they have operational functions, such functions will be, as seen above, mainly to
investigate or recommend, rather than to make dining decisions.
INTERNATIONAL ADMINISTRATIVE LAW

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Legislative Power
It is well-know that, in the context of modern welfare states, administrative law has developed as
a branch of Municipal law of various states. This branch of law deals with the problems of
legislative, judicial and quasi-judicial and discretionary powers. In recent times, threes has been
a similar development in the working of international institutions. The legislative function vested
in some institutions has also resulted in the following practices:
(a) Delegated legislation. – Regulation-making powers and powers to amend or extend the
annexes to international conventions are given to some international institutions.
(b) Subordinate law-making, for example, powered given to the General Assembly of the
United Nations to adopt its own rules of procedure, the Treaty Registration Regulations,
the statute of the Administrative Tribunal and the Staff Regulations, and so on.
Judicial or Quasi-Judicial Powers

Some organs of the international institutions have been conferred with quasi-judicial powers. For
example, the Commission of the European Economic Community can determine whether certain
activities of Member states are compatible with the common market or not. This, in turn, has
resulted in the need for judicial review to ensure that such organs do not exceed the legal powers.
The Court of Justice of the Europe Community has been given such power. However, such
supervisory jurisdiction will not extend to questions of fact. Similarly, the International Court of
Justice has been empowered to exercise judicial review over the Administrative Tribunal of the
United Nations.
Some organs of international institutions have been also empowered to determine questions
concerning the interpretation or application of the instrument which is the constitution of the
institution.
There has also developed the practice of an organ of international institution delegating an
enquiry to a smaller committee or other body. Thus, it can be seen that International
Administrative Law has been rapidly developing.
CHARACTERISTICS OF INTERNATIONAL ORGANIZATIONS

International organizations are defined with reference to their legal functions and responsibilities.
Their powers are limited by their constitutions. In this sense, they differ from states. Every state
has within is competence, prima facie, every activity, unless a rule to the contrary can be shown
under international law; whereas, in the case of international organizations, their sphere of
activity is limited and determined by their constitutions. As the International Court of Justice has
observed, - ―Whereas a state possesses the totality of international rights and duties recognized
by international law, the right and duties of an entity such as the Organization must depend upon
its purpose and functions as specified or implied in its constituent documents and practices‖.

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INTERNATIONAL ORGANIZATIONS – SUBJECTS OF INTERNATIONAL LAW

In the context of the traditional belief that states alone are subjects of international law, a new
development with the emergence of several international institutions must be noted. It is now
well-settled that these international institutions are subjects of international law and they have an
international legal personality and, therefore, they are international persons, having rights and
duties in international law, even though they are not states. For instance, this matter comes for
the advisory opinion of the International Court of Justice in Reparation for Injuries Suffered in
the Service of the Unites Nations (I.C.J. Reports (1949) 174). The facts in this case were as
follows:
In 1948, certain agents and officers of the United Nations suffered injuries in Palestine and the
United Nations‘ Mediator, Court Fluke Bernadotte was assassinated. There arose a question as to
whether the United Nations could claim compensation against a Government responsible for
such injuries. The Court, in its advisory opinion, decided that the United Nations, as an
international institution, was entitled to being such a claim.
The emergence of international institutions as international persons has led to the formation of
new rules of international law regarding the following matters:
(1) Relations between states and international institutions; and
(2) Relations between international institutions themselves.
Apart from the United Nations, several other international institutions have international legal
personality. The other question, as to whether these institutions enjoy legal personality in the
municipal laws of the states, is not answered in a coherent manner. It appears that the states are
free to grant or not to grant such personality in their legal systems.
STATUS OF INTERNATIONAL ORGANIZATIONS
International Organizations have become a major part of international relations, especially since
WWII. Over the years they have developed a special status in international law. This is
recognized in the Restatement which devotes a section to them including this statement: § 223
Subject to the international agreement creating it, an international organization has-
(a) status as a legal person, with capacity to own, acquire, and transfer property, to make
contracts, to enter into international agreements with states and other international
organizations, and to pursue legal remedies; and
(b) Rights and duties created by international law or agreement.
Another common term for these groups is Inter-Governmental Organizations (IGOs) which is
especially useful to distinguish them from international groups whose members are not
governments, such as Greenpeace or the World Council of Churches. Those kinds of groups are
known as NGOs, for Non-Governmental Organizations, and they can be very visible in
international affairs.

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The key thing to remember is that many IGOs have the capacity to create a kind of legislation
within their area of competence and if a tribunal or other form of adjudicatory mechanism is part
of their structure, to render decisions affecting their members. The biggest IGO is the United
Nations. Besides existing for its own purposes, it serves as an "umbrella" organization for many
special purpose IGOs such as the Food and Agriculture Organization or the World Health
Organization.
The other major class of international organizations is the regional organization. The most visible
of these is the European Union, but there many of them, including the Organization of American
States (OAS), Mercosur, the Islamic Conference , the Organization of African Unity (OAU), and
the Association of South East Asian Nations (ASEAN).
THE PRINCIPAL ORGANS AND THE SUBSIDIARY ORGANS

The Principal Organs
Generally, every international institution consists of the following principal organs:
(a) A policy-making body, called either an assembly or a congress. This body is generally a
representative of all Member-states.
(b) An executive body, which is generally elected by the policy-making organ.
(c) A Secretarial, to carry out the detailed administration of the international institutions; a
permanent Civil Service Staff may be provided in the constitution.
CONSTITUTION OF INTERNATIONAL ORGANIZATIONS

Though the Constitutions of international organizations vary in the case of each institution, they
have some common features. They are the following:
(a) Constitutional Sear or Headquarters. – The constitution of an international
organization usually fixes the location of the headquarters.
(b) Membership. – The constitution generally provides who the original members are, who
can be subsequently admitted, and how they can be admitted.
(c) Condition of Withdrawal or Expulsion or Suspension of Members. – Though there

are no general rules in this matter, the constitution may provide that after a specified
period of notice, the members might withdraw, and under some circumstances, the
members can be expelled or suspended.
(d) Voting Rights. – Generally, every member has a voting right, and the majority of the
votes are sufficient for adoption of decisions and resolutions. Sometimes, special systems
of voting might be provided for by the constitution of the international institution.
(e) Procedural Rules. – Generally, the constitution of the international organization might
provide some detailed rules regarding the budget of the institution and also its detailed

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working. So far as the detailed working of the institution is concerned, power to make
rules may be given to the policy-making body.
(K) SUPRA-NATIONALISM IN INTERNATIONAL LAW

What is Supra-nationalism?
Supra-nationalism is a method of decision-making in multi-national political communities,
wherein power is transferred to an authority broader than governments of member states.
Because decisions in some supranational structures are taken by majority votes, it is possible for
a member-state in those unions to be forced by the other member-states to implement a decision.
Unlike in a federal supra-state, member states retain nominal sovereignty, although some
sovereignty is shared with, or ceded to, the supranational body. Full sovereignty can be
reclaimed by withdrawing from the supranational arrangements. A supranational authority, by
definition, can have some independence from member state governments, although not as much
independence as with federal governments. Supranational institutions, like federal governments,
imply the possibility of pursuing agendas in ways that the delegating states did not initially
envision. Another method of decision-making in international organizations is inter-
governmentalism, in which state governments play a more prominent role.
Supra-nationalism in the European Union

Historically the concept was introduced and made a concrete reality by Robert Schuman when
the French Government accepted his Schuman Plan thus commencing the European Community
system beginning with the European Coal and Steel Community. The six founder States, (France,
Italy, Germany, The Netherlands, Belgium, Luxembourg) agreed on the goal; making 'war not
only unthinkable but materially impossible'. They agreed about the means: putting the vital
interests, namely coal and steel production, under a common High Authority, subject to common
institutions. They agreed on the rule of law and a democratic procedure. The five institutions
(besides the High Authority) were a Consultative Committee (a chamber representing interests of
enterprises, workers and consumers), a parliament, and a council of government ministers. A
Court of Justice would decide disputes coming from governments, public or private enterprises,
consumer groups, any other group interests or even an individual. A complaint could be lodged
in a local tribunal or national courts, where appropriate. Member States have yet to fulfill and
develop the articles in the Paris and Rome treaties for full democracy in the European Parliament
and other institutions such as the Economic and Social Committee and the Committee of
Regions.
Schuman described supranational unions as a new stage in human development, compared with
destructive nationalisms of the nineteenth and twentieth centuries that ended in wars.[1] He
traces the beginning concept of supra-nationality back to the nineteenth century, such as the
Postal Union, and the term supranational is used around the time of the first world war.
Democracy, which he defined as 'in the service of the people and acting in agreement with it,'

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was a fundamental part of a supranational community, although governments only began to hold
direct elections to the European Parliament in 1979. It was specified in the treaty for Europe's
first community of coal and steel in 1951.
Supra-nationalism only exists in the two communities inside the EU, the Economic Community
(often called the European Community) and EURATOM (the European Atomic Energy
Community, a non-proliferation community, which has been blocked in certain features.) The
first Community of Coal and Steel was agreed only for fifty years. Its jurisprudence and heritage
remains part of the European Community system. The two other pillars of the EU comprising
foreign and security policy and justice and home affairs are not subject to the same democratic
controls as the Community system.
Categorizing European supra-nationalism

Joseph H. H. Weiler, in his seminal work "The Dual Character of Supra-nationalism," states that
there are two main facets to European supra-nationalism, although these seem to be true of many
supranational systems. These are:
a. Normative supra-nationalism: The Relationships and hierarchy which exist between
Community policies and legal measures on one hand and the competing policies and legal
measures of the Member states on the other. (The Executive Dimension)
b. Decisional supra-nationalism: The institutional framework and decision making by which
such measures are initiated, debated, formulated, promulgated and, finally, executed. (The
Legislative-Judicial Dimension)
In many ways, the split sees the separation of powers confined to merely two branches.

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CHAPTER 22
UNITED NATIONS CHARTER

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(A) ESTABLISHMENT OF UNITED NATIONS
Background
Throughout the Second World War, the establishment of a general organization of states of the
purpose of safeguarding peace and promoting international co-operation was regarded as an
immediate need. There was difference of opinion as to whether the future international
organization ought to be a continuation of the League of Nations, suitably altered, or whether it
ought to take the form of a more organic association on a federal basis. There was also a third
view as to whether the structure of the international institution ought to be de determined by a
combination of the lessons of experience and the requirements of the international situation at the
close of the war. Thus the UN was founded in the background of World War II to replace the
League of Nations, to stop wars between countries, and to provide a platform for dialogue. It
contains multiple subsidiary organizations to carry out its missions. The United Nations (UN) is
an international organization whose stated aims are facilitating cooperation in international law,
international security, economic development, social progress, human rights, and the achieving
of world peace.
Beginning of UN
The term ‗United Nations‘ was coined by Franklin Delano Roosevelt, President of United States,
during World War II, to refer to the Allies and accordingly, the Allies used the term "United
Nations Fighting Forces" to refer to their alliance. The name was transferred to the UN as it was
founded by the victorious powers in the war as a condition of the Atlantic Charter and other
wartime agreements. The first official or formal use of the term occurred on January 1, 1942 with
the Declaration by the United Nations, which committed the Allies to the principles of the
Atlantic Charter and pledged them not to seek a separate peace with the Axis powers. From
August to October 1944, representatives of France, the Republic of China, the United Kingdom,
the United States, and the USSR met to elaborate the plans at the Dumbarton Oaks Estate in
Washington, D.C. Those and later talks produced proposals outlining the purposes of the
organization, its membership and organs, as well as arrangements to maintain international peace
and security and international economic and social cooperation. These proposals were discussed
and debated by governments and private citizens worldwide. The following declarations ware
responsible for shaping the form of the United Nations:
(1) Atlantic Charter

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On August 14, 1941, President Roosevelt and Mr. Churchill signed a declaration known as the
Atlantic Charter, which condemned the use of force and territorial aggrandizement and
envisaged security from aggression and freedom to choose the form of government to the people.
(2) The United Nations Declaration

The United Nations Declaration, signed by 26 nations on the New Year Day, 1942, after Japan
had opened hostilities in the Pacific, followed the Atlantic Charter. This Declaration, which was
signed at Washington, subscribed to the principles embodied in the Atlantic Charter, each nation
pledging itself to employ its full resources against the enemy, and also not to make a separate
armistice or peace with the enemies.
(3) The Moscow Declaration

The Governments of Great Britain, the United States, Russia and China issued this Declaration
on November 1, 1943. It was the Declaration which recognized the necessity of establishing, at
the earliest practicable date, a General International Organization, based on the principle of
sovereign equality of all peace-loving states, and open to membership of all such states, large
and small, for the maintenance of international peace and security.
(4) Dumbarton Oaks Conference

This Conference was convened in Washington in September 1944, for the purpose of translating
into action the principles of the Moscow Declaration. The representatives of Great Britain, the
United States, Russia and China attended the Conference. It was in this Conference that the first
blueprint of the United Nations Organization was prepared. This blueprint is known as
Dumbarton Oaks Proposals.
(5) Yalta Conference of February, 1945

Roosevelt, Churchill, and Stalin agreed in this Conference to call a General Conference of about
50 nations to consider the constitution of the United Nations based on the Dumbarton Oaks
Proposals.
(6) San Francisco Conference

The delegates of 50 nations met at San Francisco between April 25 and June 26, 1945.
Dumbarton Oaks Proposals and the Yalta Agreement were fully discussed, and ultimately, the
Charter of the United Nations and the statute of the International Court of Justice were
unanimously adopted. Finally the Charter drafted at San Francisco, and it was signed on June 26.
The UN officially came into existence on 24 October 1945 upon ratification of the Charter by the
five permanent members of the Security Council—France, the Republic of China, the Soviet
Union, the United Kingdom and the United States—and by a majority of the other 46 signatories
(officially United Nations Day). The first meetings of the General Assembly, with 51 nations

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represented, and the Security Council, took place in Westminster Central Hall in London on 10th
January 1946.
Headquarter of UN
It was decided to locate the UN headquarters in the United States. In Dec., 1946, the General
Assembly accepted the $8.5 million gift of John D. Rockefeller, Jr., to buy a tract of land along
the East River, New York City, for its headquarters. Accordingly the United Nations
headquarters building was constructed in New York City in 1949 and 1950 according to the
design by architect Oscar Niemeyer. UN headquarters officially opened on January 9, 1951.
While the principal headquarters of the UN are in New York, there are major agencies located in
Geneva, The Hague, Vienna, and elsewhere. The principal buildings there, the Secretariat, the
General Assembly, and the Conference Building, were completed in 1952. The Dag
Hammarskjöld Memorial Library was dedicated in 1961.
Participation in UN
The United Nations is the biggest and most complicated of the IGOs and acts as the parent
organization for many others. A fair amount of the work of the UN has some impact on
international law, either developing it, creating it, or enforcing it. The United Nations Charter is
the multilateral treaty that forms and establishes the international organization called the United
Nations. It was signed at the Herbs Theatre of the San Francisco War Memorial and Performing
Arts Center in San Francisco, United States, on June 26, 1945, by 50 of the 51 original member
countries (Poland, the other original member, which was not represented at the conference,
signed it later). In addition to the Governments, a number of non-government organizations,
including Lions Clubs International were invited to assist in the drafting of the charter. The 50
nations represented at the conference signed the Charter of the United Nations two months later
on June 26. Poland, which was not represented at the conference, but for which a place among
the original signatories had been reserved, added its name later, bringing the total of original
signatories to 51.
UN membership exceeded 120 by the early 1970s, was over 150 by 1980, and reached 185
nation-states by the 1990s. Despite the central role of the United States in the establishment of
the UN, and in many of its subsequent operations, Washington's relationship with the
organization has not been without friction over the years.
Most countries in the world have now ratified the UN Charter. At present there are 192 countries
are members of the UN, including nearly every sovereign state in the world. One notable
exception is the Holy See/Vatican City, which has chosen to remain a permanent observer state
and therefore is not a full signatory to the Charter. Other entities recognized as sovereign by
several, but not majority of states - such as the Republic of China (Taiwan) and the Saharawi
Arab Democratic Republic (Western Sahara) - are also not members. UN membership is open to

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all "peace-loving states" that accept the obligations of the UN Charter and, in the judgment of the
organization, are able and willing to fulfill these obligations. The General Assembly determines
admission upon recommendation of the Security Council.
From UNO to UN
Initially, the body was known as the United Nations Organization or UNO but by the 1950s
English speakers were referring to it as the United Nations or UN.
(B) PURPOSES AND PRINCIPLES OF UNITED NATIONS CHARTER
United Nations is an international organization whose stated aims are facilitating cooperation in
international law, international security, economic development, social progress, human rights,
and the achieving of world peace. The preamble is the beginning part of the Charter which gives
idea about its very existence and basic foundation on which it is based. However, the Great
Powers who were responsible to shape the structure and functions of UN in 1945 as an
organization had different perspectives and ideologies in their mind. After a common consensus
only through various conferences from 1941 to 45 the UN Charter has taken shape. Those
consensuses reflected in the Preamble of the UN Charter.
Different Perspectives behind the creation of UN

President Franklin Delano Roosevelt (1933–1945) viewed the UN as a potential pillar of a wider
effort to construct an international order in which U.S. manufacturers and investors would be
able to continue to benefit economically following the end of World War II. Other observers
emphasize the role of liberal (or Wilsonian) idealism in the foundation of the UN and its
importance as an effort to move beyond the Great Power rivalry of the pre-1945 era. Related to
this perception is the view that Roosevelt envisioned the UN as a vehicle by which the Soviet
Union could be brought into a more cooperative and less confrontational international order.
From this perspective, the UN was a way of maintaining and broadening the alliance after 1945
between the victorious powers in World War II.
At the same time, even if the establishment of the UN represented an immediate response to
World War II, it built on rather than displaced the ideas about, and the practices of, international
relations that had emerged prior to the 1940s. For example, the UN was clearly a successor
organization to the League of Nations. But, given the discredited reputation of the League, the
UN could not be established directly on its foundations. Many observers regard the UN as an
improvement on the overall structure of the League of Nations. From the perspective of the
United States and its wartime allies, one of the most significant improvements was to be the way
in which the UN was even more explicitly grounded in the principle of the concert (or concerted
action) of the Great Powers. The notion that the Great Powers had unique rights and obligations
in international relations was already a major element behind the establishment of the League of

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Nations, particularly its main decision-making body, the Council. In the UN, however, the major
allied powers were given permanent seats on the Security Council, which came with the right of
veto on any UN security initiative. The main framers of the UN also sought to enlarge the
organization's role in social and economic affairs (in contrast to the League). This flowed from
the knowledge that a broad international effort would be required to deal with a range of
problems related to reconstruction following the end of World War II. There was also a sense
that mechanisms for countering the kind of wholesale violation of human rights that had
characterized the Nazi regime needed to be set up. Furthermore, in light of both the Great
Depression and World War II there was a growing concern that economic inequality and poverty
facilitated crisis and war.
PREAMBLE OF THE UN CHARTER (THE OBJECTS OF UN)

The objects of the United Nations are set forth in the Preamble. The Preamble states the ―We the
people of the United Nations‖ are determined to do the following:
1) To save the succeeding generations from the scourge of war.
2) To reaffirm faith in fundamental human rights and in the dignity and worth of the human
person.
3) To reaffirm faith in the equal rights of men and women, and all nations large and small.
4) To establish conditions under which justice and respect for International Law and
international obligations can be maintained.
5) To promote social progress and better standards of life and larger freedom.
6) To unite our strength to maintain international peace and security.
7) To ensure that armed forces shall not be used, save in the common interest.
8) To employ international machinery for the promotion of economic and social advancement
of all the people.
It may be noted that the Preamble states that the object of the United Nations is to be achieved in
two ways. The object of maintaining international peace and security is to be achieved, firstly, by
prohibiting the use of armed forces, and secondly, by promoting conditions conducive to the
preservation and the maintenance of peace. The Preamble realizes the fact that peace is not mere
absence of war and further the war is the symptom of certain social and economic mal-
adjustments in society. Therefore, it sets before the United Nations the object of positively
achieving peace by recognizing the worth and dignity of the individual, his fundamental rights
and by promoting social progress and better standards of life. The Preamble also realizes that war
can be avoided only by the promotion of the economic and social advancement of all people.
The UN Charter starts with Preamble however, it is not numbered. The Preamble is certainly a
part of UN Charter which speaks about the purpose and principles on which UN stand, which has
been clarified in more and concrete terms in the first and second articles of the Charter. The
Preamble of the UN starts with the word ‗WE THE PEOPLES OF THE UNITED NATIONS
DETERMINED‘.

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PURPOSES OF THE UNITED NATIONS

Article 1 of the UN Charter states following four Purposes of the United Nations are
1. To maintain international peace and security, 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 center for harmonizing the actions of nations in the attainment of these common
ends.
From the above purposes, as mentioned in Article1, appears that UN is primarily an organization
established for maintaining peace and security, with the additional functions of developing
complimentary friendly relations among nations of achieving international co-operation in
economic, social, cultural, and humanitarian matters, of developing respect for human rights and
fundamental freedoms, and of providing a means for harmonizing international action to attain
there aims.
There purposes are clearly wide-ranging; however presides useful guidance as to the
comprehensive character of the institution and its broad concerns. Prof Shaw has pointed out the
question of priorities as between the various purposes is subject to controversy and change, but
this only reflects the continuing pressures and attiring political balances within the organizations.
In the initial days, the implant‘s was on decolonization, self-determination and apartheid which
has resulted into growth of membership and dismantling the colonial empires in the cotemporary
World. In the later period, the issues of economic and developmental problem along with human
rights and concern for marginal classes (Women, tribal, children, disabled accrued etc)
preoccupied the UN. The most important among all purposes or rather the crux of the UN
purposes is of maintenance of international peace and security and the development of friendly
relations among states and also the achievement of cooperation in solving international problems
and promote and encouraging respect for human rights.
The founders of the UN had high hopes that it would act to prevent conflicts between nations and
make future wars impossible, by fostering an ideal of collective security. Those hopes have
obviously not been fully realized. From about 1947 until 1991 the division of the world into
hostile camps during the Cold War made agreement on peacekeeping matters extremely difficult.

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Following the end of the Cold War, there were renewed calls for the UN to become the agency
for achieving world peace and co-operation, as several dozen active military conflicts continue to
rage around the globe. The breakup of the Soviet Union has also left the United States in a
unique position of global dominance, creating a variety of new problems for the UN.
PRINCIPLES OF THE UNITED NATIONS

The principles which are enumerated above are not the end, but they are means to an end. They
should be observed while acting to achieve the purposes of the United Nations. Article 2 of the
UN Charter states that the Organization and its Members, in pursuit of the Purposes stated in
Article 1, shall act in accordance with the following 8 principles:
1. Principle of the sovereign equality of all its Members.
2. Fulfillment of obligations in good faith.
3. Settle the international disputes by peaceful means.
4. No use of force or threat against the territorial integrity or political independence of any
state.
5. Provide every assistance to UN in any action taken in accordance with the Charter,
6. Refrain from giving assistance to any state against UN when taking preventive or
enforcement action.
7. Non-Members must ensure to act in accordance with these Principles so far necessary for
the maintenance of international peace and security.
8. No authority to the United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any state without prejudice to application of enforcement
measures under Chapter VI of Charter.
It may be noted that these principles of the Charter make it mandatory upon the United Nations
to ensure that non-member states act in accordance with the principles of the Organization ―so
far as may be necessary for the maintenance of international peace and security‖. Though the
Charter cannot impose any legal obligation upon non-member states, it asserts, in effect, the right
to control their conduct with regard to the essential aspect of their foreign relations. To that
extent, it amounts to assertion of a right of intervention in relation to non-member states. This
right of the United Nations to lawfully affect non-member states is supported by the unanimous
decision of the International Court of Justice in the case concerning ―Reparation for injuries
suffered in the service of the United Nations‖.
The last principles says that UN has no authority to intervene in matters which are essentially
within the domestic jurisdiction of any state without prejudice to application of enforcement
measures under Chapter VI of Charter. It shall require the Members to subject to settlement
under the present Charter. But this principle shall not prejudice the application of the
enforcement measures under Charter VII (action with respect to the threat to the peace, breaches
of peace and acts of aggression). The main problem before the United Nations is to reconcile two

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things, which cannot, apparently, be reconciled; to maintain international peace and security on
the one hand, and at the same time, to respect the sovereign equality of its Members. An attempt
to reconcile these two is made in Para 7 of Article 2. According to this Para, the United Nations
cannot intervene in matters, which are essentially within the domestic jurisdiction of any state,
unless such a matter happens to be in the nature of a threat to the peace, breach of peace or an act
of aggression.
(C) MEMBERSHIP
The Members of the United Nations are of two kinds. –
(i) Original Members.
(ii) Members subsequently admitted.
Original Members: Sates are original Members by one of the following methods:
(i) By participating in the United Nations Conference at San Francisco (1945) Or
(ii) Having previously signed the Declaration by the United Nations of January 1, 1942, and
by signing the present charter and ratifying it according to Article110.
Members subsequently admitted: According to Article 4, states may be admitted as members

of the United Nations by a decision reached by 2/3rds majority of the Assembly, on the
recommendation of the Security Council. The Security Council recommendations such entry by
a majority of seven Members of the Council including the concurring votes of the Permanent
Members. (Article 27)
Qualifications of Members to be admitted

Article 4 lays down the following three qualifications of the states, which can be admitted as
Members of the United Nations. They are the following:
a) A state must be peace loving.
b) It must accept the obligations contained in the Charter.
c) In the judgment of the Organization, it must be able and willing to carry out these
obligations.
It must be noted that though no state has a right to be admitted as a Member, the Members of the
General Assembly and of the Security Council must exercise their judgment in good faith, in
reaching a decision as to whether a state is peace-loving and whether it is able and willing to
carry out the obligations of the Charter. This view is supported by the decision of the
International Court of Justice in its advisory opinion on Conditions of Members in the United
Nations (1948).
Oppenheim is of the opinion that the members of the Security Council would be improperly
exercising the power if both they exercise the so-called right of veto or make a one-sided and

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partisan interpretation of what constitutes a peace-loving state. It must also be noted that these
restrictions of the admission of Members affect the universality of the United Nations.
Suspension and Expulsion

Article 5 provides that a member-state, against which the Security Council has taken preventive
or enforcement action, may be suspended by the General Assembly upon the recommendation of
the Security Council. Article 6 provides that the General Assembly may expel upon the
recommendation of the Security Council, May Member-states that is persistently violating the
principles contained in the Charter. It may be noted that this provision regarding the expulsion of
Members father affects the universality of the United Nations as an Organization.
(D) PRINCIPAL ORGAN OF THE UN

The following are the major Organs of the United Nations:
(i) The General Assembly
(ii) The Security Council
(iii) The Economic and Social Council
(iv) The Trusteeship Council
(v) The International Court of Justice
(vi) The Secretariat.
In addition to the above, other subsidiary Organs, if found necessary, may be established in
accordance with the Charter.
THE GENERAL ASSEMBLY

The General Assembly consists of all the Members of the United Nations. This is the only
principle Organ of the United Nations which consists of all members. In this organ, each member
has one vote and 5 representatives. It meets regularly once a year, but can meet in a special
session, if summoned by the Secretary-General at the request of the Security Council or of a
majority of the members.
The functions and powers of the General Assembly are to act mainly as a deliberative body. It
has power of discussion, review, supervision and criticism in relation to the work of the United
Nations as a whole. It can discuss any question or any matter within the scope of the present
Charter or relating to the powers and function of any organ, the only limitation being that it
cannot make any recommendations to the members or to the Security Council on any question or
any dispute or situation over which the Security Council is exercising its functions. This
restriction continues so long as the Security Council is exercising its functions. The Powers and
function of the General Assembly are summarized by Starke as following:
(a) Powers of discussion and recommendation and recommendation in relation to the
maintenance of international peace and security;
(b) The direction and supervision of international economic and social co-operation;

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(c) The supervision of the international trusteeship system;

(d) The consideration of information as to non-self-governing territories;
(e) Budgetary and financial powers, whereby it has exclusive control over the finances of the
United Nations;
(f) Powers of admitting, suspending and expelling member-states (see above);
(g) Powers in relation to the adoption of amendments to the Charter;
(h) The election of members of other organs;
(i) The receipt and consideration of reports on the work of the United Nations; and
(j) The adoption of International Conventions.
THE SECURITY COUNCIL

The Security Council is a continuously functioning body, consisting of 15 Member-states. China,
France, Russia, Great Britain and United States are the five permanent Members if the Security
Council. The non-permanent Members are elected for two years by the General Assembly.
According to Article 23 of the ‗Charter‘, these non-permanent Members are to be elected by the
General Assembly paying due regard to the following:
(a) The contribution of Members of the United Nations to the maintenance of international peace
and security and to the other purposes.
(b) An equitable geographical distribution.
A retiring Member is not eligible for immediate re-election. Each Member of the Security
Council has one representative. The Member state of the United Nations who is not Members of
the Security Council may participate without vote in the discussions of the Security Council
under the following circumstances:
(a) If the Council considers that the interests of those Members are specially affected by any
question being discussed by the Security Council.
(b) If any Members state is a party to a dispute being considered by the Security Council, such
Member may be invited to participate. In the latter circumstances, even a non-member state can
be invited to participate without vote.
The Security Council‘s nature is of Executive body. In the opinion of the editor of Oppenheim,
the Security Council must be considered more as an agency for preserving peace, rather than a
comprehensive instrument for the government of the world. It must also be noted that one of the
basic political assumptions of the Charter, as conceived in Dumbarton Oaks and San Francisco
Conferences, was unanimity amongst the great powers. The founders of the Charter were fully
aware of the fate of the League of Nations, which happened to be paralyzed on account of
dissensions amongst great powers. To overcome such difficulty, the Security Council was
constituted on the basic assumption that all the permanent Members of the Security Council must
act unanimously in important questions. It is this principle that was responsible for the five great
powers having permanent seats in the Security Council and also for their so-called veto.

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Voting procedure in the Security Council

Each member of the Security Council has one vote. Decisions of the Security Council on
procedural matters are made by an affirmative vote of eleven Members. Decisions on all other
matters are made by an affirmative vote of eleven Members, including the concurring votes of
the permanent Members; provided that as regards any decision under Chapter 6 dealing with
pacific settlements of disputes and under para 3 of Article 52, dealing with the encouragement of
the development of the pacific settlement, a party to a dispute must abstain from voting. It is this
necessity of the concurring votes of the five permanent Members of the Security Council on all
matters which are not procedural that has led to the operation of the ―veto‖. If one of the
permanent Members does not affirmatively vote in favor of a particular decision, the decision is
vetoed, and does not come into existence.
The Veto
The Veto of the permanent members has been one of the most controversial questions in the
Charter. It may be pointed out that one of the cardinal principles of the Charter is the sovereign
equality of all its members. Obviously, it appears that the Veto of the permanent members is
inconsistent with the principle of sovereign equality of the members; but the political reason for
giving this Veto to the permanent members has been already referred to. It was felt that the lack
of unanimity amongst the permanent members might split the United Nations, and the
Organization might meet the fate of the League of Nations. Stark refers to another justification
for giving this power of Veto to the permanent members. According to him, as the permanent
members bear the main burden of responsibility for maintaining peace and security, no
permanent member should be compelled by the vote of the Security Council to follow a course
of action with which it disagrees. Though it was understood at the San Francisco conference that
the great powers would not use their powers willfully to obstruct the operations of the Security
Council, in practice, the Security Council has been stultified on account of the veto. The Security
Council, which was expected to be in continuous session and to attend to situations of emergency
when the international peace and security was threatened, has been paralyzed on account of the
veto.
The only occasion when the Security Council could act with great promptitude was during the
Korean conflict, 1950-53. In this conflict, the Northern Korean troops and crossed into South
Korean territory in June 1950. Russia remained absent from the Security Council as a protest
against the representative of Nationalist China Government occupying the seat of permanent
Member in the Security Council. The security council passed resolutions finding that a breach of
peace had been committed, recommending assistance to the South Korean authorities and
providing for a unifies United Nations command under United Nations direction. Russia, which
soon returned to the Security Council, challenged the validity of the resolutions on the ground
that China, which was a permanent Member of the Security Council, was the Communist China
and not the Nationalist China. Both these objections of Russia were met. So far as the first

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objection was concerned, it was maintained that concurring of votes of the five permanent
Members was necessary only when all the five Members were present in the Security Council.
Secondly, it was ruled the Nationalist China was the true representative of China, the
permanent Member.
Powers and functions of the Security Council are enumerated in the Charter. In contradiction
with the predominantly deliberative character of the functions of the Assembly, those of the
Security Council are primarily of an executive nature. The executive function of the Security
Council is almost exclusively confined to the maintenance of international peace and security.
According to Article 24 of the Charter, the primary responsibility for the maintenance of
international peace and security is conferred on the Security Council in order to ensure prompt
and effective action by the United Nations. In discharging these duties, the Security Council acts
in accordance with purposes and principles of the United Nations. The Members of the United
Nations agreed to accept and carry out the decision of the Security Council in accordance with
the present Charter, though the primary responsibility for maintaining the international peace and
security lies with the Security Council, this responsibility is not exclusive. It is also to some
extent shared by the General Assembly and regional agencies that might be created under
Chapter VII. The powers and functions of the Security Council can be broadly classified into the
following categories:
a) Powers and functions regarding pacific settlement of disputes (Chapter VI);
b) Powers and functions regarding action with respect to threat to the peace, breaches of the
peace and acts of aggression (Chapter VII);
c) Other executive powers regarding the working of the United Nations as a whole.
(a) Pacific settlement of dispute

The Security Council can, when it deems necessary, call upon the parties to settle their disputes
by negotiation, enquiry, mediation or such other peaceful means of setting disputes. The Security
Council has this power if the continuance of a dispute is likely to endanger the maintenance of
international peace and security. If the parties to a dispute fail to settle it by means indicated
above, they refer it to the Security Council. If the Security Council deems that the continuance of
the dispute is in fact likely to endanger peace and security, it decides -
(i) Whether to recommend the appropriate procedures or methods of settlement.- The security
council may recommend appropriate procedures or methods of settlement of a dispute or a
situation, continuance of which is likely to endanger the peace and security. If it is a legal
dispute, it is to be referred to the International Court of Justice.
(ii) Whether to recommend actual terms of settlement. – If all the parties to a dispute so request,
the Security Council may make recommendations to the parties with a view to a pacific
settlement of the dispute.
(iii) Whether to investigate under Article 34. – The Security Council can investigate any dispute
or any situation, which might lead to international friction or give rise to a dispute, in order to
determine whether the continuance of the dispute or situation is likely to endanger the

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maintenance of international peace and security. Such investigation may be made by the Security
Council on its own initiative or on a Member state bringing it to the attention of the Security
Council or a non-member state, which is a party to the dispute bringing it to the notice of the
Security Council. In addition to these, the General Assembly or the secretary-general may also
bring to the notice of the Security Council, any situation or dispute that threatens the
maintenance of peace and security.
(b) Action, with respect to threat to peace, breach of peace and acts of aggression
The powers and functions of the Security Council can be broadly enumerated thus:
(i) The Security Council must determine the existence of any threat to the peace, etc.
(ii) It must take certain provisional measures to prevent an aggravation of the situation.
(iii) It may decide what measures not involving the use of the armed forces are to be
employed.
(iv) It may take measures involving the use of the armed forces
These powers are discussed below.

(i) The Security Council shall determine the existence of any threat to the peace, etc. – The
first function of the Security Council regarding the preventive or enforcement action is to
determine the existence of any threat to the peace, breach of the peace, or act of aggression.
Thereafter, it makes recommendations as to what measures are to be taken to maintain or restore
international peace and security.
(ii) Provisional measures. – In order to prevent an aggravation of the situation, the Security
Council may, before making recommendations or deciding upon the measures to be taken, call
upon the parties concerned to comply with such provisional measures, as it deems necessary as it
deems necessary or desirable. Such provisional measures are, however, without prejudice to the
rights, claims, or compensation of the parties concerned.
(iii) Measures not involving use of armed forces. – The Security Council may decide what
measures, not involving the use of armed forces, are to be employed to give effect to its decision,
and it may call upon the Members of the United Nations to apply such measures. This may be in
the form of complete or partial interruption of economic relation and means of negotiation and
the severance of diplomatic relations.
(iv) Measures involving use of armed forces. – If the Security Council considers that the
above-mentioned measures are inadequate, it may take such action by air, sea, or land forces, as
may be necessary to maintain or restore international peace and security. Such action may
include demonstration, blockade and other operations by air, sea or land forces of Members of
the United Nations. The Members of the United Nations are under an obligation to make
available to the Security Council, on its call and in accordance with special agreement of
agreements, armed forces, assistance, and facilities including rights of passage necessary for the
purpose of maintaining international peace and security.

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In its Advisory opinion of 1971, on the Legal Consequences for states of the Continued Presence
of South Africa in Namibia (South West Africa), the International Court of Justice ruled that the
security council‘s primary authority and responsibility for maintaining peace entitled the council
to make a binding determination (as it did in Resolution in 1970) that the continued presence of
South Africa in the Territory of South West Africa was illegal, because its mandate for the
Territory had terminated through failure to comply with its obligation to submit to the
supervision of United Nations organs. (ICJ Reports (1971)
(c) Other executive powers of Security Council regarding the United Nations as a whole
The Security Council, being the main executive organ of the United Nations, has several
executive powers and functions. They are as follows:
(1) Control and Supervision of Strategic Area
Trust Territories According to Article 83 of the Charter, all functions of the United Nations
relating to strategic areas, including the approval of the terms of the trusteeship, are to be
exercised with the assistance of the Trusteeship Council.
(2) Regional Agencies and Arrangements
The Member States of the United Nations may enter into regional arrangements or agencies for
dealing with matters relating to maintenance of international peace and security, provided such
arrangements are consistent with the purposes and principles of the United Nations. The Security
Council shall encourage the development of pacific settlement of local disputes through such
regional arrangements. It shall also utilize, where appropriate, such regional arrangements or
agencies for enforcement action under the authority.
(3) Admissions, Suspension and Expulsion of Members
The Security Council has the power of recommending states for admission to membership in the
United Nations. For some time, it was thought that the General Assembly of the United Nations
could soup mute (i.e., on its own) admit members to the United Nations if the Security Council
could not make a recommendation on account of the operation of the veto. But the International
Court of Justice has given its advisory opinion to the effect that the General Assembly could not
by its own decision admit a state to the membership of the United Nations in case the Security
Council failed to make a recommendation. Similarly, action can be taken by the General
Assembly to suspend or expel a member only on the recommendation of the Security Council.
The Security Council may restore the rights and privileges of a Member state if such rights and
privileges are suspended by General Assembly.
(4) Election of the Judges of the International Court of Justice.
The members of the Court are elected by the Security Council and by the General Assembly.
(5) Amendment of the Charter
(i) A general conference of the United Nations for the purpose of reviewing the Charter may be
held by two-thirds votes of the members of Assembly and seven members of the Security
Council.

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(ii) And piecemeal amendment to the present Charter can be adopted by a particular majority of
the General Assembly and Security Council.
RELATION BETWEEN SECURITY COUNCIL AND THE GENERAL ASSEMBLY

The General Assembly is mainly a deliberative and recommendatory body, whereas the Security
Council is the main executive body. Yet, as seen above, the Security Council and the General
Assembly exercise many executive functions jointly.
Maintenance of peace and security

The primary responsibility for the maintenance of peace and security belongs to the Security
Council; yet the General Assembly has certain powers of consideration recommendation.
According to Article 11 of the Charter, the General Assembly may consider the general
principles of co-operation in the maintenance of international peace and security, including the
principles governing disarmament and the regulation of armaments, and may make
recommendation of the members or to the Security Council or to both. The General Assembly
may discuss any question relating to the maintenance of international peace and security, and
may make recommendations to the concerned states or the Security Council or to both. The
General Assembly may call the attention of the Security Council to situations, which are likely to
endanger international peace and security.
This power of the General Assembly to make recommendations is subject to one restriction, i.e.,
while the Security Council is exercising its jurisdiction over any dispute or situation, the General
Assembly cannot make any recommendation with regard to the dispute or situation unless the
Security Council so requests. Subject to the limitations referred to above, the General Assembly
has, in fact, taken a leading role in questions of international peace and security. Its contributions
towards settling the Arab-Palestine dispute of the Suez Canal Zone are notable.
The Effect of Veto

Though the Charter intended the General Assembly to be a deliberative and recommendatory
body, yet certain developments during the working of the. Charter has given the General
Assembly greater importance than was intended in the Charter. On account of the unfortunate
cold war atmosphere and the consequent veto exercised by certain powers, the Security Council
has almost been paralyzed regarding its ability to take action for either solving international
disputes or for maintaining international peace and security. This almost complete paralysis of
the Security Council gave additional importance to the General Assembly. As there is no veto in
the General Assembly and as each member‘s states has one vote, the general assembly has
become, to a greater extent, a forum of the opinion of the member states.
The main consequences of the veto can be briefly summed up as follows:

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(1) As the Security Council, which is to work continuously and which should be in a position to
take prompt steps when international peace and security are threatened, is incapable of taking
such prompted action for some organ of the conflict among the permanent members, the need for
some organ of the United Nations which would be continuously in session and which would take
such action was felt. The General Assembly generally sits once in a year. Therefore, the General
Assembly created in 1947, an interim committee, popularly known as the ―Little Assembly‖ to
assist the General Assembly in its duties in relation to maintaining peace and security. But is
appears that this Little Assembly has not made any significant contribution.
(2) As taking of any preventive or enforcement measure by the Security Council would be
impossible on account of veto, the General Assembly passed in November, 1950, a resolution
known as ―Uniting for Peace‖ resolution.
(a) According to this resolution, a special session at 24 hours‘ notice on the vote of any seven
members of the Security Council or of a majority of the member states could be convened if the
Security Council failed to act because of the veto.
(b) The resolution also provided for setting up a Peace Observation Commission to observe and
report on the situation in any area where international tension threatened international peace and
security.
(c) The resolution also provided for a Collective Measures Committee to consider methods,
which might be used collectively to maintain and strengthen international peace and security.
It may be noted that many writers challenge the legality of this resolution. It is argued that if the
General Assembly can call upon the member‘s states to take collective measures, such a step
would amount to the use of force inconsistent with the purpose the United Nations Charter, as
laid down in its Article 2. It is also argued that both the Delbarton Oaks Proposals and the Sam
Francisco Conference visualized unanimity amongst great powers for taking collective measures.
The resolution that goes contrary to this resolution is to strengthen the United Nations in
maintaining international peace and security and to relieve it of the stultifying effect of the veto
in the Security Council. It can be said that the resolution is not illegal or contrary to the Charter.
(3) The General Assembly recommended, in 1950, the appointment of a Permanent
Commission of Good Offices.
(4) It also recommended setting up a panel of individuals to serve on the Commission of
Enquiry and Conciliation.
In brief, it can be said that the General Assembly has played quite a vital role in maintaining
international peace and security, and on account of the veto in the Security Council; the
importance of the General Assembly has grown in practice.
PEACEKEEPING MACHINE OF THE UNITED NATIONS

Though the term ―peace-keeping‖ is not used in the Charter of the United Nations, yet the
concept of pace keeping has evolved over a period of time. Some illustrations are: the U.N.
Emergency Force in the Suez area, the U.N. Truce Supervision Organization in Palestine, the

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U.N. Force in Cyprus, the U.N. Mission in the Dominican Republic (established in May, 1965),
and the U.N. Military Observer Group in India and Pakistan. These would not exhaust the variety
of the tasks, which are contemplated by the protagonists of U.N. peacekeeping.
In recent years, the ―pace keeping‖ concept has emerged to receive as much attention as other
current or projected programmers of United Nations action. A Special Committee on Peace
keeping Operations has met in pursuance of a General Assembly Resolution of February 18,
1956, for ―a comprehensive review of the whole question of pace keeping operations in all their
suspects‖. The issues involved in peacekeeping are, in what circumstances, in the absence of
Security Council enforcement action, interposition forces, groups, or missions can be sent the
United Nations to areas of conflict, with functions related to the restoration or maintenance of
peace, or the mitigation of deteriorating situations, such as, for observation, truce supervision
purposes, negotiation, and restoring freedom of movement. When such a mission operates,
unless the Security Council has provided to the contrary, the operation of the mission does not
depend on the consent of the concerned states. The Mission is free to decide the location of the
forces, the importation of supplies, and contacts with the conflicting entities or forces. The
Security Council alone has, under the Charter, executive responsibility to establish and operate a
force compulsorily in the territory of a member state. However, it may be noted that, for the
establishment of peacekeeping forces, whether the consent of the host states is necessary or not
has been a subject of controversy. In addition to this, the problem of contribution towards
expenses of the force is also difficult to solve.
THE ECONOMIC AND SOCIAL COUNCIL

The Economic and Social Council of the United Nations consists of 27 members elected by the
General Assembly. The members retire by rotation, and are elected for a term of 3 years. The
Charter correctly appreciated that creation of conditions of stability and well-being was
necessary for peaceful and friendly relations among nations. Therefore, an obligation was
imposed on the United Nations to promote higher standards of living, full employment and
conditions for economic and social progress. The Economic and Social Council is the main body,
which has to promote these measures towards creating conditions of stability and wellbeing.
Its powers are briefly the following:

(a) It may make or initiate studies and reports with respect to international, economic, social,
cultural, educational, health and related matters.
(b) It may make recommendations with respect to any such matters to the General Assembly,
to the members of the United Nations, and to the specialized agencies concerned.
(c) It may make recommendations for the purpose of promoting respect for, and observance
of, human rights and fundamental freedoms for all.
(d) It may prepare draft Conventions for submission to the General Assembly, with respect to
matters falling within its competence.

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(e) It may call International Conferences on matters falling within its competence,
(f) It may co-ordinate activities of the specialized agencies, and obtains regular reports from
them.
(g) It may communicate its observance on these reports to the General Assembly and also to
the Security Council.
TRUSTEESHIP COUNCIL & INTERNATIONAL TRUSTEESHIP SYSTEM

The Charter provides for the Trusteeship system, with the following basic objects:
(a) To further international peace and security.
(b) To promote the political, economic, social and educational advance-mint of the inhabitants
of the Trust territories and their progressive development towards self-Government or
independence.
(c) To encourage respect for human rights and for fundamental freedoms for all, without
distinction as to race, sex, language or religion.
(d) To ensure equal treatment in social, economic and commercial matters for all members of
the United Nations and their nations.
Trust Territories
The Trusteeship shall apply to the following categories of territories:
(a) Territories held under mandate at the commencement of Charter;
(b) Territories which may be detached from enemy states as a result of the Second World
War; and
(c) Territories voluntarily placed under the system by states responsible for their
administration.
Trusteeship Council‘s Membership

a. Members administering trust territories.
b. Members of the Security Council who are not administering trust territories.
c. Members elected by the General Assembly in such number as may be necessary to ensure
that the total number of the members of the Trusteeship Council is equally divided
between those members of the United Nations who administer trust territories and those
who do not.
The main function of the Trusteeship Council is to supervise the work of the administering
authority.
SECRETARIAT
The sixth organ of the United Nations is the Secretariat. It comprises of a Secretary-General and
such staff as the organization may require. The Secretary-General is appointed by the General
Assembly upon the recommendation of the Security Council. He acts as a Chief Administrative
Officer of the Organization in all meetings of the General Assembly, of the Security Council, of
the Economic and Social council and of the Trusteeship council. The secretary General marks an
annual report to the General Assembly on the work of the Organization. He may bring to the

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attention of the Security Council any matter, which, in his opinion, may threaten the maintenance
of international peace and security.
The Secretary-General must maintain the exclusive international character of Secretariat. He

should not seek or receive instructions from any Government or from any other authority
external to the Organization, in the performance of his duties. Each member of the United
Nations is under an obligation to respect the exclusive international character of the Secretary-
General and his staff.
The Secretary-General under regulations established by the General Assembly appoints the staff
of the Secretariat. Though the paramount consideration in the employment of the staff is the
necessity of securing the highest standard of efficiency, competence and integrity, due regard is
to be paid to the importance of reactance of recruiting the staff on as wide a geographical basis as
possible.
The organization is financed from assessed and voluntary contributions from its member states.
UN has six official languages: Arabic, Chinese, English, French, Russian, and Spanish, however,
Arabic, Chinese, English, French, Russian, and Spanish are used in intergovernmental meetings
and documents. The Secretariat uses two working languages, English and French. Five of the
official languages were chosen when the UN was founded; Arabic was added later in 1973.
The United Nations Editorial Manual states that the standard for English language documents is
British usage and Oxford spelling (en-gb-oed)
(E) AMENDMENT AND REVIEW OF THE CHARTER
The U.N. Charter visualizes two methods by means of which it can be altered.
a) The first method is amendment of the Charter, whereby certain parts of it can be altered.
According to this method, the Charter can be amended if such amendment is adopted by a
vote of two-thirds of the members of the United Nations, including the Permanent Members
of the Security Council.
b) The second method of altering the Charter is by review. Article 109 of the Charter provides
that a general conference of the members of the United Nations for the purpose of reviewing
the Charter may be held, if so decided by a two-thirds vote of the members of the general
assembly and by a vote of any seven members of the Security Council. In the conference,
each member of the United Nations has one vote. This Article is not amended though the
strength of the Security Council is increased to 15. The alterations suggested by the
conference must be recommended by a two-thirds vote of the conference and ratified by two-
thirds members of the United Nations, including the Perm ant Members of the Security

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Council. It may be noted that a review of the charter means the alterations of the charter even
regarding the fundamentals on the basis of which the charter is formulated, while amendment
of the charter might mean altering the charter in its minor details. But the charter does not
make a clear distinction between the scope of amendment and that of review.
(F) DIFFERENCE BETWEEN THE UN & THE LEAGUE OF NATIONS

Though the United Nations Charter drew from the experience of the working the League of
Nations, and though the pattern of organization in the charter resembles the pattern of the League
of Nations, yet there are fundamental differences between the two. These differences are
summarized below:
(1) Ends or Purposes

Both the organizations aimed at international aimed at international peace, by settling disputes by
amicable means, but the League of Nations, in view of the fact that the principles and purposes
of the charter are more broad-based. As the Preamble of the charter reads, the charter is the
outcome of the determination of the people of the United Nations to save the succeeding
generations from the scourge of war and to reaffirm faith in fundamental human rights; whereas
the Preamble of the Covenant was an agreement between the high contracting parties to promote
international peace and security.
The difference in phraseology of the Preambles of the two organizations is highly illuminating.
The United Nations attempts not only at preventing war but also at removing the causes of war.
Therefore, there is greater emphasis in the charter on economic, social, cultural and humanitarian
matters. The covenant was the offspring of Treaty of Versailles whereas the charter is
unconnected with any peace treaty. It is an independent attempt on the part of the various states
to realize the futility of war in modern times and to establish international peace and security.
(2) Organisation
The League of nations had only four organs, the Assembly, the council, the Permanent court of
International Justice and the Secretariat; the charter of the League of Nations had six organs, the
General Assembly, the security council, the Economic and Social council, the Trusteeship
council, the International court of Justice and the Secretariat. The increase in the number of the
organs of the United Nations under the charter reflects the emphasis given in the charter on
social, economic and cultural matters.
(3) Voting Procedure

In the League, all questions of importance had to be decided by unanimity. In the Charter,
important questions will be decided by the General Assembly by a two-third majority and other
questions by ordinary majority. In the Security Council, the Permanent Members, as already
observed, have the right of veto. In spite of this, it can be said that the charter is a step towards
the world government, as it discards the unanimity principle. The International Organization

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under the charter will be able to take decisions by a majority in spite of the recalcitrance of some
members. Though the veto in the Security Council has stultified it, the General Assembly has
been able to play a vital role in maintaining international peace and security.
(4) Obligations
The obligations of the members states of the League were stated and defined in specific and rigid
terms, but under the charter they are stated in general terms.
(5) Enforcement Measures

The powers of the council of the League were recommendatory in character, whereas the
Security Council can impose binding obligations on the member states in connection with
settlement of international disputes and preventive and enforcement measures.
Another important difference between the two organizations is that the charter enables the
United Nations to use armed forces in the interest of international peace and security, whereas
such powers under the Legume of Nations were recommendatory. The members of the United
Nations have bound themselves in advance to provide armed forces on terms to be agreed with
the Security Council and the Security Council is to be advised and assisted by a Military Staff
Committee in the direction of the use of force. Corresponding provisions were absent in the
covenant of League of Nations
(6) Right of Self-Defence

The Covenant of the Legume of Nations was silent of the question of the right of self-defense of
the member states, whereas Article 51 of the charter is explicit on this point. It recognizes the
inherent right of a state to use force to defend itself if an armed attack occurs against it. This
right of self-defense can be exercised by the member‘s states either individually or collectively.
(7) Neutrality
Under the League of Nations, the traditional concept of neutrality was left intact. In the charter,
generally, the concept of neutrality has been replaced by the concept of collective responsibilities
though in rare cases, member‘s states can be neutral.
(8) Withdrawal
The Covenant of the League of Nations provided for voluntary withdrawal on members; the
Charter does not provide any method of withdrawal.
(9) The Limitation of the Organisation

The jurisdiction of the League of Nations did not extend to matters vitally affecting the interests
of the member‘s states; nut under the charter, no organ of the United Nations can intervene in the
domestic jurisdiction of a state, unless there is a breach of international peace and security, or
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(G) SPECIALIZED AGENCIES OF UN-IGOs
There are 17 international organizations work as agencies of the UN that function to work on
particular issues. These specialized agencies, which concern themselves with certain aspects of
the world affairs. The Food and Agricultural Organization (FAO) of United Nations, for
example, concerns itself with improving living standards and nutrition of people and with
promoting increased production and more efficient distribution of food and agricultural products.
The United Nations Educational, Scientific and Cultural Organization (the UNESCO) concerns
item lf with the field of education, cultural knowledge and science. The objects of the UNESO
have been described in these words: ―The purpose of the organization is to contribute to peace
and security by promoting collaboration among nations, through education, science and cultural
effort, to father universal respect for justice, for the rule of law and for the human rights and
fundamental freedoms which are affirmed for the peoples of the world, without distinction of
race, sex, language or religion by this charter of the United Nations‖. The UNSCP prepares plans
and programmers for the progress of education, science and culture throughout the world with
the co-operation of the various states. The Universal Postal Union Organization concerns itself
with the improvement of postal services throughout the world.
According to Starks these specialized agencies have fulfilled two objects:

a) They have not only acted as buttresses to the United Nations, but they have themselves
drawn strength from their association with the United Nations.
b) They have involved the national authorities of different states into more direct and
continuous association with the work of international Institutions.
The specialized agencies of the UN also serve to coordinate worldwide activities in specific
subject areas. They are roughly analogous to our domestic federal agencies. For example, the
US agency in charge of issues relating to airlines, airports, and air traffic control is the Federal
Aviation Administration. The worldwide equivalent is the International Civil Aviation
Organization (ICAO). There are many of these IGOs with varying amounts of power and
different structures. All are the result of treaties and often serve to coordinate additional treaties
in the same area. Most produce some sort of legislation-like texts. Most have some sort of
representative body. Some have adjudicative bodies with of limited jurisdiction. All of them
produce some sort of documentation. Here is a list of Specialized agencies of the United Nations:
No. Acronyms, Name of the Agency, Headquarters, Head, Established in year.

1) FAO- Food and Agriculture Organization, Rome, Italy, Jacques Diouf, 1945
2) IAEA- International Atomic Energy Agency, Vienna, Austria, Mohamed ElBaradei,1957
3) ICAO- International Civil Aviation Organization, Montreal, Canada, R. Benjamin, 1947

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4) IFAD- International Fund for Agricultural Development, Rome, Italy, K. F. Nwanze,1977
5) ILO- International Labour Organization, Geneva, Switzerland, Juan Somavía,1946
6) IMO- International Maritime Organization, London, UK, Efthimios E. Mitropoulos,1948
7) IMF- International Monetary Fund, Washington, D.C., USA, D. Strauss-Kahn,1945
8) ITU- International Telecommunication Union, Geneva, Switzerland, H. Touré,1947
9) UNESCO- United Nations Educational, Scientific and Cultural Organization, Paris,

France, Irina Bokova,1946
10) UNIDO- United Nations Industrial Development Organization, Vienna, Austria, Kandeh
Yumkella,1967
11) UPU- Universal Postal Union, Berne, Switzerland, Edouard Dayan,1947
12) WB - World Bank, Washington, D.C, USA, Robert B. Zoellick, 1945
13) WFP-World Food Programme, Rome, Italy, Josette Sheeran, 1963
14) WHO - World Health Organization, Geneva, Switzerland, Margaret Chan, 1948
15) WIPO- World Intellectual Property Organization, Geneva, Switzerland, F. Gurry, 1974
16) WMO- World Meteorological Organization, Geneva, Switzerland, A. Bedritsky,1950
17) UNWTO-World Tourism Organization, Madrid, Spain, Taleb Rifai, 1974
1. INTERNATIONAL LABOUR ORGANIZATION

The International Labour Organization (ILO) is a specialized agency of the United Nations that
deals with labour issues. Its headquarters are in Geneva, Switzerland. It is one of the agency
which older than UN. The secretariat of ILO is called International Labour Office. The
organization received the Nobel Peace Prize in 1969. The ILO was established as an agency of
the League of Nations following the Treaty of Versailles, which ended World War I. Post-war
reconstruction and the protection of labour unions occupied the attention of many nations during
and immediately after World War I. The first annual conference (referred to as the International
Labour Conference, or ILC) began on 29 October 1919 in Washington DC and adopted the first
six International Labour Conventions, which dealt with hours of work in industry,
unemployment, maternity protection, night work for women, minimum age and night work for
young persons in industry. The prominent French socialist Albert Thomas became its first
Director General. The ILO became a member of the United Nations system after the demise of
the League in 1946. Its constitution, as amended, includes the Declaration of Philadelphia (1944)

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on the aims and purposes of the organisation. As of April 2009, the current director-general is
Juan Somavia (since 1999).
The organization of the ILO consists of three organs. Organs of Governments, employers and
employees represent the International organization. In this sense, it has a tripartite character. This
structure of the I.L.O. is of unique significance in the development by states only, but in the
I.L.O., other groups or interests are also represented. The organization has three main organs:
a) The International Labor Conference.
b) The Governing Body.
c) The International Labor Office.
The International Labor Conference is a policy-making and legislative body. The Conference
promotes labor legislation in each state by adopting recommendations and conventions.
The Governing Body is the executive organ of the organization. The three also represents it
interest mentioned above: Government, employers and employees.
The third organ, the International Labor Office, representing the administrative or Civil service
staff of the organization, discharges functions similar to those of the United Nations Secretariat.
Membership is limited to nation-states, including all who were members on 1 November 1945,
when the organization‘s new constitution came into effect. In addition, any original member of
the United Nations and any state admitted thereafter may also join. Other states can be admitted
by a super-majority vote of any ILO General Conference. There are 182 members of the ILO.
2. WORLD HEALTH ORGANIZATION (WHO)

The World Health Organization (WHO) is a specialized agency of the United Nations (UN) that
acts as a coordinating authority on international public health. Established on 7 April 1948, and
headquartered in Geneva, Switzerland, the agency inherited the mandate and resources of its
predecessor, the Health Organization, which had been an agency of the League of Nations.
WHO's constitution states that its objective "is the attainment by all peoples of the highest
possible level of health." Its major task is to combat disease, especially key infectious diseases,
and to promote the general health of the people of the world.
The World Health Organization (WHO) is one of the original agencies of the United Nations, its
constitution formally coming into force on the first World Health Day, (7 April 1948), when it
was ratified by the 26th member state. Prior to this its operations, as well as the remaining
activities of the League of Nations Health Organization, were under the control of an Interim
Commission following an International Health Conference in the summer of 1946. The transfer
was authorized by a Resolution of the General Assembly. The epidemiological service of the
French Office International d'Hygiène Publique was incorporated into the Interim Commission
of the World Health Organization on 1 January 1947.

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3. UNITED NATIONS EDUCATIONAL, SCIENTIFIC & CULTURAL

ORGANIZATION (UNESCO)
The United Nations Educational, Scientific and Cultural Organization (UNESCO) is a

specialized agency of the United Nations established on 16 November 1945. Its stated purpose is
to contribute to peace and security by promoting international collaboration through education,
science, and culture in order to further universal respect for justice, the rule of law, and the
human rights and fundamental freedoms proclaimed in the UN Charter. It is the heir of the
League of Nations' International Commission on Intellectual Cooperation. UNESCO has 193
Member States and seven Associate Members. The organization is based in Paris, with over 50
field offices and many specialized institutes and centers throughout the world. Most of the field
offices are "cluster" offices covering three or more countries; there are also national and regional
offices. UNESCO pursues its objectives through five major programmes: education, natural
sciences, social and human sciences, culture, and communication and information. Projects
sponsored by UNESCO include literacy, technical, and teacher-training programmes;
international science programmes; the promotion of independent media and freedom of the press;
regional and cultural history projects, the promotion of cultural diversity; international
cooperation agreements to secure the world cultural and natural heritage (World Heritage Sites)
and to preserve human rights; and attempts to bridge the worldwide digital divide.
As early as 1942, in wartime, the governments of the European countries, which were
confronting Nazi Germany and its allies, met in the United Kingdom for the Conference of
Allied Ministers of Education (CAME). The Second World War was far from over, yet those
countries were looking for ways and means to reconstruct their systems of education once peace
was restored. Very quickly, the project gained momentum and soon took on a universal note.
New governments, including that of the United States, decided to join in. Upon the proposal of
CAME, a United Nations Conference for the establishment of an educational and cultural
organization (ECO/CONF) was convened in London from 1 to 16 November 1945. Scarcely had
the war ended when the conference opened. It gathered together the representatives of forty-four
countries. Spurred on by France and the United Kingdom, two countries that had known great
hardship during the conflict, the delegates decided to create an organization that would embody a
genuine culture of peace. In their eyes, the new organization must establish the ―intellectual and
moral solidarity of mankind‖ and, in so doing, prevent the outbreak of another world war.
At the end of the conference, thirty-seven countries founded the United Nations Educational,
Scientific and Cultural Organization. The Constitution of UNESCO, signed on 16 November
1945, came into force on 4 November 1946 after ratification by twenty countries. The first
session of the General Conference of UNESCO was held in Paris from 19 November to 10
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The ashes of the Second World War are reflected in the composition of the founding Member
States of UNESCO. Japan and the Federal Republic of Germany became members in 1951,
Spain in 1953. Other major historical factors, as the Cold War, the decolonization process and
the dissolution of the USSR, also left their trace on UNESCO. The USSR joined UNESCO in
1954 and was replaced by the Russian Federation in 1992. Nineteen African States became
Members in 1960. Twelve Republics from the former Soviet Union joined UNESCO in the
period 1991 to 1993. As a consequence of its entry into the United Nations, the People's
Republic of China has been the only legitimate representative of China at UNESCO since 1971.
The German Democratic Republic was a Member from 1972 to 1990, when it joined the Federal
Republic of Germany. The League of Nations, the United Nations' ancestor, also had an
institution to deal with intellectual cooperation. Its name was the « International Committee on
Intellectual Cooperation (ICIC) and had prestigious members such as Albert Einstein, Thomas
Mann or Marie Curie. The flag of UNESCO shows a variation of the Parthenon, the ancient
Greek temple, which is located in Athens, Greece.
4. WORLD TRADE ORGANIZATION (WTO) (EX-GATT)
The World Trade Organization is one of the newest international organizations. It describes itself
as "the only international organization dealing with the global rules of trade between nations. Its
main function is to ensure that trade flows as smoothly, predictably and freely as possible." The
WTO was created in 1995 as the result of what is known as the "Uruguay Round of
Negotiations", which lasted from 1986 to 1994. It evolved from the more awkwardly structured
General Agreement on Tariffs and Trade (GATT).
The World Trade Organization (WTO) is an international organization designed by its founders
to supervise and liberalize international capital trade. The organization officially commenced on
January 1, 1995 under the Marrakesh Agreement, replacing the General Agreements on Tariffs
and Trade (GATT), which commenced in 1947. The World Trade Organization deals with
regulation of trade between participating countries; it provides a framework for negotiating and
formalizing trade agreements, and a dispute resolution process aimed at enforcing participants'
adherence to WTO agreements which are signed by representatives of member governments and
ratified by their parliaments. Most of the issues that the WTO focuses on derive from previous
trade negotiations, especially from the Uruguay Round (1986-1994). The organization is
currently endeavoring to persist with a trade negotiation called the Doha Development Agenda
(or Doha Round), which was launched in 2001 to enhance equitable participation of poorer
countries which represent a majority of the world's population. However, the negotiation has
been dogged by "disagreement between exporters of agricultural bulk commodities and countries
with large numbers of subsistence farmers on the precise terms of a 'special safeguard measure'
to protect farmers from surges in imports. At this time, the future of the Doha Round is
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The WTO has 153 members, representing more than 95% of total world trade and 30 observers,
most seeking membership. The WTO is governed by a ministerial conference, meeting every two
years; a general council, which implements the conference's policy decisions and is responsible
for day-to-day administration; and a director-general, who is appointed by the ministerial
conference. The WTO's headquarters is at the Centre William Rappard, Geneva, Switzerland.
Harry Dexter White and John Maynard Keynes at the Bretton Woods Conference – Both
economists had been strong advocates of a liberal international trade environment, and
recommended the establishment of three institutions: the IMF (fiscal and monetary issues), the
World Bank (financial and structural issues), and the ITO (international economic cooperation).
The WTO's predecessor, the General Agreement on Tariffs and Trade (GATT), was established
after World War II in the wake of other new multilateral institutions dedicated to international
economic cooperation - notably the Bretton Woods institutions known as the World Bank and
the International Monetary Fund. A comparable international institution for trade, named the
International Trade Organization was successfully negotiated. The ITO was to be a United
Nations specialized agency and would address not only trade barriers but other issues indirectly
related to trade, including employment, investment, restrictive business practices, and
commodity agreements. But the ITO treaty was not approved by the United States and a few
other signatories and never went into effect. In the absence of an international organization for
trade, the GATT would over the years "transform itself" into a de facto international
organization.
The GATT was the only multilateral instrument governing international trade from 1948 until
the WTO was established in 1995. Despite attempts in the mid-1950s and 1960s to create some
form of institutional mechanism for international trade, the GATT continued to operate for
almost half a century as a semi-institutionalized multilateral treaty regime on a provisional basis.
From Geneva to Tokyo there were seven rounds of negotiations occurred under the GATT. The
first GATT trade rounds concentrated on further reducing tariffs. Then, the Kennedy Round in
the mid-sixties brought about a GATT anti-dumping Agreement and a section on development.
The Tokyo Round during the seventies was the first major attempt to tackle trade barriers that do
not take the form of tariffs, and to improve the system, adopting a series of agreements on non-
tariff barriers, which in some cases interpreted existing GATT rules, and in others broke entirely
new ground. Because these pluri-lateral agreements were not accepted by the full GATT
membership, they were often informally called "codes". Several of these codes were amended in
the Uruguay Round, and turned into multilateral commitments accepted by all WTO members.
Only four remained plurilateral (those on government procurement, bovine meat, civil aircraft
and dairy products), but in 1997 WTO members agreed to terminate the bovine meat and dairy
agreements, leaving only two.

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During the Doha Round, the US government blamed Brazil and India for being inflexible, and
the EU for impeding agricultural imports. The President of Brazil, Luiz Inácio Lula da Silva,
responded to the criticisms by arguing that progress would only be achieved if the richest
countries (especially the US and countries in the EU) make deeper cuts in their agricultural
subsidies, and further open their markets for agricultural goods. Well before GATT's 40th
anniversary, its members concluded that the GATT system was straining to adapt to a new
globalizing world economy. In response to the problems identified in the 1982 Ministerial
Declaration (structural deficiencies, spill-over impacts of certain countries' policies on world
trade GATT could not manage etc.), the eighth GATT round — known as the Uruguay Round —
was launched in September 1986, in Punta del Este, Uruguay. It was the biggest negotiating
mandate on trade ever agreed: the talks were going to extend the trading system into several new
areas, notably trade in services and intellectual property, and to reform trade in the sensitive
sectors of agriculture and textiles; all the original GATT articles were up for review.[19] The
Final Act concluding the Uruguay Round and officially establishing the WTO regime was signed
during the April 1994 ministerial meeting at Marrakesh, Morocco, and hence is known as the
Marrakesh Agreement.
The GATT still exists as the WTO's umbrella treaty for trade in goods, updated as a result of the
Uruguay Round negotiations (a distinction is made between GATT 1994, the updated parts of
GATT, and GATT 1947, the original agreement which is still the heart of GATT 1994).[18]
GATT 1994 is not however the only legally binding agreement included via the Final Act at
Marrakesh; a long list of about 60 agreements, annexes, decisions and understandings was
adopted. The agreements fall into a structure with six main parts: The Agreement Establishing
the WTO, Goods and investment — the Multilateral Agreements on Trade in Goods including
the GATT 1994 and the Trade Related Investment Measures, Services — the General Agreement
on Trade in Services, Intellectual property — the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS), Dispute settlement (DSU), Reviews of governments' trade
policies (TPRM)

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CHAPTER 20
INTERNATIONAL HUMANITARIAN LAW

(A) INTRODUCTION
International humanitarian law is a branch of the law of nations, or international law. That law
governs relations between members of the international community, namely states. International
law is supranational, and its fundamental rules are binding on all states. Its goals are to maintain
peace, to protect the human being in a just order, and to promote social progress in freedom.
International humanitarian law – also called the law of armed conflict and previously known as
the law of war- is a special branch of law governing situations of armed conflict- in a word, war.
International humanitarian law seeks to mitigate the effects of war, first in that it limits the
choice of means and methods of conducting military operations, and secondly in that it obliges
the belligerents to spare persons who do not or no longer participate in hostile actions.
Individual natives of philanthropists like Henry Dunant who witnessed the pain and agony of
more than 40,000 neglected and unattended soldiers after the battle of Soldering (1859), led to a
normative framework as well as an institutional response culminating in the establishment of the
International Committee of the Red Cross (1863) and the adoption of the Geneva Conventions of
1949 and the Additional Protocols of 1977.
(B) ORIGIN AND DEVELOPMENT OF HUMANITARIAN LAW

It is hardly possible to find documentary evidence of when and where the first legal rules of a
humanitarian nature emerged, and it would be even more difficult to name the ―creator‖ of
international humanitarian law. For everywhere that confrontation between tribes, clans, the
followers of a leader or other forerunners of the state did not result in a fight to the finish, rules
arose (often quite unawares) for the purpose of limiting the effects of the violence. Such rules,
the precursors of present-day international humanitarian law, are to found in all cultures. More
often than not they are embodied in the major literary works of the culture (for example, the
Indian epic Mahabharata), in religious books (such as the Bible or the Koran) or in rules on the
art of war (the rules of Manu or the Japanese code of behavior, the bushido). In the European
Middle Ages, the knights of chivalry adopted strict rules on fighting, not least for their own
protection. The notion of chivalry has survived to this day. It was not uncommon for the parties
to conflicts to reach agreements on the fate of prisoners: these were the predecessors of our
modern multilateral agreements. Such rules also existed and still exist in cultures with no written
heritage.
In short, powerful lords and religious figures, wise men and warlords from all continents have
since time immemorial attempted to limit the consequences of war by means of generally
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The achievements of 19th century Europe must be viewed against this right historical
background. Today‘s universal and for the most part written international humanitarian law can
be traced directly back to two persons, both of whom were marked by a traumatic experience of
war: Henry Dunant and Francis Libber. At almost the same time, but apparently without
knowing of each other‘s existence, Dunant and Libber made essential contributions to the
concept and contents of contemporary international humanitarian law. It in no way detracts from
the importance of their contributions, however, to say that these two major figures did not invent
protection for the victims of war. Rather, they expressed an old idea in a form adapted to the
times.
Dunant and Libber both built on an idea put forward by Jean-Jacques Rousseau in The Social
Contract, which appeared in 1762: ―War is in no way a relationship of man with man but a
relationship between States, in which individuals are only enemies by accident, not as men, but
as soldiers….‖ Rousseau continued, logically, that soldiers may only be fought as long as they
themselves are fighting. Once they lay down their weapons ―they again become mere men‖.
Their lives must be spared.
Rousseau thus summed up the basic principle underlying international humanitarian law, i.e. that
the purpose of a bellicose attack may never be to destroy the enemy physically. In so doing he
lays the foundation for the distinction to be made between members of a fighting force, the
combatants, on the one hand, and the remaining citizens of an enemy state, the civilians not
participating in the conflict, on the other. The use of force is permitted only against the former,
since the purpose of war is to overcome enemy armed forces, not to destroy an enemy nation.
But force may be used against individual soldiers only so long as they put up resistance. Any
soldier laying down his arms, or obliged to do so because of injury, is no longer an enemy and
may therefore, to use the terms of the contemporary law of armed conflict, no longer be the
target of a military operation. It is in any case pointless to take revenge on a simple soldier, as he
cannot be held personally responsible for the conflict.
The intellectual foundation for the rebirth of international humanitarian law in the 19th century
was therefore laid. Henry Dunant could build on it. In his book, A Memory of Solforeno, he did
not dwell so much on the fact that wounded soldiers were mistreated or defenseless people
killed. He was deeply shocked by the absence of any form of help for the wounded and dying.
He therefore proposed two practical measures calling for direct action: an international
agreement on the neutralization of medical personnel in the field, and the creation of a permanent
organization for practical assistance to the war wounded. The first led to the adoption in 1864 of
the initial Geneva Convention; the second saw the founding of the Red Cross. Only the first is of
interest to us in the present context.
(C) ANCIENT INDIAN HISTORICAL FACTS RELEVANT TO IHL

The laws of war were extant in ancient India when the epic wars were fought involving large
armies and directed by heroes like Shri Rama and Lord Krishna. The most glorious instance of

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Emperor Asoka, who won the Kalinga war (225 BC) but, at the sight of slaughter in battle,
renounced violence forever as a Buddhist ruler, shines as a Buddhist ruler, shines as a beacon
light of humanitarian regime. ‗To exist is to co-exist‘ is the quintessence of global jurisprudence.
However, let us look at the early texts of India which relate to mitigation of suffering during war.
The Sukraniti deals with principles which must be observed even in battles. For example:
―Neither is an old man nor a child to be killed, surely not a woman and especially not a king. If
one kills having fought in a suitable manner, no virtue is violated… Let the soldiers always avoid
committing a rash act, a murderous assault, delay in the service of the king, overlooking what is
disagreeable to the king, and neglect in the performance of their duties.
Again in the Judah Niamey of yore, war has been regulated: ―Let not the king strike with
concealed weapons, nor weapons which are barbed, poisoned or the points of which are blazing
with fire. He should not strike, when he is on his chariot, one who is on the ground; he should
not strike a person who is a eunuch, or who has surrendered or is fleeing from the battle-field or
one who is sitting or accepts defeat, no one who is sleeping, nor one who has lost his armor, not
one who is naked, not one who is only a spectator, nor one who is engaged in fighting with
another, nor one whose weapons are not broken, nor one who is afflicted with sorrow, not one
who is grievously wounded, nor one who is in fear.
These are the restrictions on an honorable warrior which every soldier must remember during
war. This is the declared law for warriors, which a Kshatriya must not transgress, if he were to
remain unblemished, when he is fighting with his foes in the battle-field. He should fight only in
accordance with Dharma, which is hence called Dharmayuddha‖. ―They shall beat their swords
into plowshares, and their spears into pruning hooks: nation shall not lift up sword against
nation, neither shall they learn war any more‖.
India has absorbed this spirit of farewell to arms and that is why from the Buddha to Mahatma
Gandhi, we find a humanitarian ethos in India culture. The Bandung Spirit also highlights in the
20th century what early Indian dharma had taught. Jawaharlal Nehru stood for anti-imperialism
and human solidarity. He was one of the architects of the Bandung Conference. The Bandung
Forum held in Maraca (Freedom) Hall in 1955 at which 29 non-aligned countries met is a
manifestation of the Asia hunger for a humane world. The declaration on the promotion of world
peace and co-operation at Bandung is proof of the India humanitarian culture.
(D) IHL AS HUMAN RIGHTS LAW

International humanitarian law is increasingly perceived as part of human rights law applicable
in armed conflict. This trend can be traced back to the United Nations Human Rights Conference
held in Tehran in 1968 which not only encouraged the development of humanitarian law itself,
but also marked the beginning of a growing use by the united nations of humanitarian law during
its examination of human rights situation in certain countries or during its thematic studies. The
greater awareness of the relevance of humanitarian law to the protection of people in armed
conflict, coupled with the increasing use of human rights law in international affairs, means that

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both these areas of law not have a much greater international profile and are regularly being used
together in the work of both international and non-governmental organizations.
However, as human rights law and humanitarian law have totally different historical origins, the
codification of these laws has until very recently followed entirely different lines. The purpose of
this paper is to consider the philosophy of these two branches of law in the light of their origins,
how in many essential respects they nevertheless coincide, how they have influenced each other
in recent developments and, finally, to consider how their similarities and differences could
influence their future use.
(E) THE PHILOSOPHY OF HUMANITARIAN LAW

Restrictions on hostile activities are to be found in many cultures and typically originate in
religious values and the development of military `philosophies. The extent to which these
customs resemble each other is of particular interest and in general their similarities relate both
to the expected behavior of combatants between themselves and to the need to spare non-
combatants. Traditional manuals of humanitarian law cite the basic principles of this law as
being those of military necessity, humanity, and chivalry. The last criterion seems out of place in
the modern world, but it is of importance for an understanding of the origin and nature of
humanitarian law.
The first factor of importance is that humanitarian law was developed at a time when recourse to
force was not illegal as an instrument of national policy. Although it is true that one of the
influences of the development of the law in Europe was the church‘s just war doctrine, which
also encompassed the justice of resorting to force, the foundations of international humanitarian
law were laid at a time when there was no disgrace in beginning a war. The motivation for
restraint in behavior during war stemmed from notions of what was considered to be honorable
and, in the nineteenth century in particular, what was perceived as civilized. The law was
therefore in large part based on the appropriate respect that was due to another professional
army. We will use here as a good illustration of the philosophy underlying the customary law of
war the Libber Code of 1863, as this code was used as the principal basis for the Hague
Conventions of 1899 and 1907 which in turn influenced later developments.
(F) SOURCES OF INTERNATIONAL HUMANITARIAN LAW

The four Geneva Conventions of 12 August 1949 for the protection of the victims of war are the
main sources of international humanitarian law:
1) Convention for the Amelioration of the Condition of the Wounded and sick in Armed Forces
in the Field (First Genève Convention);
2) Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (Second Geneva Convention);
3) Convention relative to the Treatment of Prisoners of War (Third Geneva Convention);

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4) Convention relative to the Protection Civilian Persons in Time of War (Fourth Geneva
Convention).
5) The Geneva Conventions supplemented with the two Additional Protocols of 8 June 1977:
o Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I);
o Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
protection of Victims of Non-International Armed Conflicts (Protocol II).
6) International customary law- The rules of International customary law also play an important
role. Some of them set forth absolute obligations which are binding on all states (jus cogens).
However, the 1977 Protocols have not yet been universally adopted.
(G) FUNDAMENTAL RULES OF IHL APPLICABLE IN ARMED CONFLICTS
1. Persons hors de combat and those who do not take a direct part in hostilities are entitled to
respect for their lives and physical and moral integrity. They shall in all circumstances by protect
and treated humanely without an adverse distinction.
2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
3. The wounded and sick shall be collected and cared for by the party to the conflict which has
them in its power. Protection also covers medical personnel, establishments, transports, and
materiel. The emblem of the Red Cross (Red Crescent, red lion and sun) is the sign of such
protection and must be respected.
4. Captured combatants and civilians under the authority of an adverse party are entailed to
respect for their lives, dignity, personal rights, and convictions. They shall be protected against
all acts of violence and reprisals. They shall have the right to correspond with their families and
to receive relief.
5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be
held responsible for an act he has not committed. No one shall be subjected to physical or mental
torture, corporal punishment, or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forces do not have an unlimited choice of
methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a
nature to cause unnecessary losses or excessive suffering.
7. Parties to a conflict shall at all times distinguish between the civilian population and
combatants in order to spare the civilian population and property. Neither the civilian population
nor civilian persons shall be the object of attack. Attacks shall be directed solely against military
objectives.
This concludes our short overview of international humanitarian law, past and present. We shall
now examine in greater detail specific questions regarding this branch of law.

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(H) PROTECTION OF WAR VICTIMS THROUGH LAW

The Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (of
22 August 1864) lays the legal groundwork for the activities of army medical units on the
battlefield. Because they were neutralized, their immunity from attack could be upheld; medical
units and personnel may be neither attacked nor hindered in the discharge of their duties.
Equally, the local inhabitants may not be punished for assisting the wounded. The 1864
Convention made it clear that humanitarian work for the wounded and the dead, whether friend
or foe, was consistent with the law of war. As everybody knows, it also introduced the sign of
the Red Cross on a white ground for the identification of medical establishments and personnel.
GENEVA CONVENTION OF 1949
Humanitarian Law – the law of Geneva as it is sometimes called – consists of the four Geneva
Conventions of 1949 and the two Additional Protocols of 1977 and constitutes a comprehensive
legal document comprising more than 600 Articles codifying the rules protecting person
including civilians in armed conflicts both of international and non-international character.
Under the Conventions, the High Contracting Parties are obliged, inter alia, to:
- Respect and to ensure respect for the conventions in all circumstances;

- Enact legislation necessary to provide effective penal sanctions ―for persons committing or
ordering to be committed any of the grave breaches‖ of the conventions as defined under the
conventions;
- Take measures necessary ―for the suppression of all acts contrary to the provisions‖ of the
conventions other than grave breaches;
- Take measures necessary ―for the prevention and suppression, at all times, of the abuses‖ of
the emblems – the Red Cross, the Red Crescent and the red lion and sun.
- ‗Grave breaches‘ are defined under each of the conventions and they include generally
willful killing, fortune or inhuman-treatment including biological experiments, willfully
causing great suffering or serious injury to body or health, extensive destruction and
appropriation of property not justified by military necessity and carried out unlawfully and
wantonly.
- They also include compelling a prisoner of war to serve in the forces of the hostile power or
willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the
convention, unlawful deportation or transfer or unlawful confinement of a protected person
and taking them as hostages.
THE GENEVA CONVENTIONS ACT, 1960

The Geneva Conventions were ratified by the President of India on the 16th of October 1950 and
came into force in the country on the 9th of May 1951. India being a party of the Conventions,
the Parliament enacted the Geneva Conventions Act, 1960 (hereinafter referred to as ‗the Act‘)
―to enable effect to be given to certain International Conventions done at Geneva on the twelfth

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of August, 1949‖, under Art. 253 read with Entry 13 and 14 of List 1 of the Seventh Schedule to
the Indian Constitution. The Act seeks to implement the Convention ―so far as it is necessary so
to do‖ and at the same time Consolidates the law on the subject by repealing the U.K. Act of
1911 (the Geneva convention Act, 1911) in its application to India and the Central Act of 1936
(the Geneva Convention Implementing Act, 1936) and incorporating their provisions in the
present act. The Statement of Objects and Reasons specifies the matters which require to be
implemented by the legislation as follows:
 Punishment of ―grave breaches‖ referred to in Art. 50 of the First Convention and equivalent
Articles of the succeeding Conventions;
 Conferment of jurisdiction on our courts to try offences under these Conventions, even when
committed by foreigners outside India;
 Extension of the protection given under the existing law of the red cross and Geneva Cross,
to two new emblems, namely, the Red Crescent on a while ground and the Red Lion and Sun
on a white ground;
 Procedural matters relating to legal representation, appeal etc.
Thus, the main objectives of the Act are to implement the provisions of the 1949 Conventions
relating to punishment for grave breaches and to prevent and punish abuse of the Red Cross and
other emblems.
(I) THREE MAIN TRENDS: GENEVA, THE HAGUE, & NEW YORK TRENDS IN
IHL
The IHL, although of relatively recent origin in its present shape, has a long history behind it.
Even in the distant past, military leaders sometimes ordered their troops to spare the lives of
captured enemies, treat them well, spare the enemy civilian population, doctors, their assistants
and chaplains not to be takes as captives and returned to their side, prisoners of war to be
protected and exchanged without ransom and sick and wounded to be cared for and not to be
regarded as prisoners of war. It the course of time, these and suchlike practices gradually
developed into a body of customary rules relating to the conduct of war. However, the scope of
these customary rules of warfare remained elusive and uncertain.
The process of codification of the customary rules of warfare started after the middle of the 19 th
century with the conclusion of multilateral treaties which rendered specificity to the uncertain
customary rules of warfare. Two separate treaties were concluded: one at Geneva in 1864 on the
fate of wounded soldiers on the battlefield and the other in St. Petersburg in 1868 prohibiting the
use of explosive rifle bullets. These modest beginnings led to the emergence of two distinct
trends in the law of armed conflict, namely, the Geneva trend which more particularly concerned
with the condition of war victims and The Hague trend relating to the conduct of war proper and
permissible means and methods of war. Much later in 1960‘s and 1970‘s, the United Nations
began to take an active interest in the law of armed conflict, mainly from the aspect of
implementation of fundamental human rights in the armed conflict. This resulted in the

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emergence of the third trend, namely, the New York trend. These three trends have finally
merged into a single movement.
THE GENEVA TREND

In the middle of the 19th century in 1859, the battle of soldering exposed the vulnerability of the
customary rules of warfare. At that battle about 38,000 were killed or wounded in 15 hours.
Customary rules of warfare were put to dust. Field hospitals were shelled. Doctors and stretcher
bearers in the field were subjects it fore. Whoever fell into enemy hands? Whether wounded or
not and regardless of whether he belonged to the fighting forces or to the medical or auxiliary
personnel, was taken as prisoner. Often upon the approach of enemy forces, or even when their
approach was merely rumored, the doctors, and nurses in the field hospitals fled with ambulances
at their disposal. Of the wounded at soldering, many died from lack of medical care and attention
and lack of water and medicaments for the wounded men.
At the battle of soldering there was present a Swiss citizen, Henry Dunant, amidst thousands of
French and Austrian wounded. Dunant was present not as a soldier but as a civilian for purposes
unrelated to the war then in progress between Austria and France. Dunant saw the full horrors of
the battle. For days, he and a few other volunteers did what they could to treat the wounded and
alleviate the sufferings of the doing. Deeply affected by the misery he had witnessed, he retired
for a while from active life and wrote his experiences down in a bold entitled ‗Memory of
Solferino‘ (Un souvenir de Solferino) which was published in 1862. In his book, Dunant made
two proposals which he regarded as indispensable. The first proposal was that each state should
establish in time of peace a relief society to aid the army medical services in time of war. The
second proposal was that states should conclude a treaty that would facilitate the work of these
relief societies and guarantee a better treatment of the wounded. Dunant, a citizen of Geneva, is
generally recognized today as the founder of the Red Cross movement. Thereafter, the
International Committee of the Red Cross was established with its seat in Geneva with its
membership confined to Swiss nationals. The publication of Dunant, the man of compassion for
the wounded in battle provided the first legal haze to IHL.
The second proposal of Dunant was implemented in 1864 with the adoption of the Geneva
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. The
Convention has three important features. Firstly, in war on land, military hospitals and
ambulances would be recognized as neutrals.
Secondly, hospital and ambulance personnel would have the benefit of the same neutrality when
on duty.
Thirdly, hospitals and ambulances would be distinguished by a uniform flag bearing a red cross
on a white ground.

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In 1899, a treaty was concluded rendering the principles of the treaty of 1864 applicable to the
wounded, sick and shipwrecked at sea. 1906 saw the first revision of the treaty of 1864 and in
1907 the treaty of 1899 was adjusted to the revision of 1906. The First World War, with its long
duration and huge numbers of prisoners of war on both sides, brought to light the need for better
protection of the prisoners of war. In 1929, the Convention was adopted in the form of much
improved treaty on the treatment of the wounded and sick on land taking into accounts the
experiences of the First World War.
The Second World War provided the incentive for yet another major revision and further
development of the law of Geneva. The three Conventions in force (one of 1907 and two of
1929) were substituted by new Conventions, giving improved versions of many existing rules
and filling lacunae that practice had brought to light. The law of Geneva was enriched by an
entirely novel Convention on the protection of civilian persons in time of war. Thus, in 1949,
four Geneva Conventions were concluded dealing with the wounded and sick on land; the
wounded, sick and shipwrecked at sea; prisoners of war; and protected civilian.
The 1949 Conventions produced an innovation of major importance which merits special
mention. The Conventions apply in their entirety to international armed conflicts. However, all
the four Conventions contain a common Article 3 which is applicable in armed conflict not of an
international character occurring in the territory of one of the High Contracting Parries. Article 3
contains a list of fundamental rules that the parties are bound to apply as a minimum in the event
of non-international armed conflicts. The adoption of Article 3 signified a tremendous step
forward in that it proved the possibility of laying down rules of international law expressly and
exclusively addressing the situation in internal armed conflicts. The four Geneva Conventions of
1949, however, began to show shortcomings during the course of years.
THE HAGUE TREND
(a) The Libber Code:

The second jurist who rendered legal base to IHL is a refugee professor Francis Libber, and
international lawyer of German origin, who has migrated to America. In 1863, he prepared a set
of instructions, popularly known as the Libber Code, to be followed by the American Army
during American Civil War (1861-1865). The Libber Code provides detailed ruler on the entire
range of warfare, from the conduct of war proper and the treatment of the civilian population to
the treatment of specified categories of persons such as the prisoners of war, the wounded,
doctors, nurses, and chaplains. Based on the Libber Code, President Lincoln issued ―Army Order
No. 100‖ entitled Instructions for the armies of the United States in the Field. Although
technically a purely internal document and written to be applied to American Civil War, the
Libber Code has also served as model and a source of inspiration for the codification of the laws
and customs of war. The Libber Code has exerted tremendous influence on subsequent
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In 1868, at St. Petersburg a remarkable document saw the light of the day with the adoption of a
Declaration Renouncing the Use, in time of War, of Explosive Projectiles under 400 Grams
Weight. Although these explosive projectiles were not more effective than ordinary rifle bullets,
it caused far graver that the employment of such weapons would be contrary to the laws of
humanity. The Declaration thus makes an Endeavour to strike a balance between the necessities
of war and the laws of humanity.
(b) De Martens Clause:
The third initiative to humanize war was taken by a Russian jurist, Frederic de Martens. He held
the chair of international law at the University of Petersburg. He was the catalyzing figure at
both the Hague Peace Conventions were established whereas at the second pace conference in
1907, 13 conventions were established, of these, the most important for the development of
international humanitarian law was the Hague Convention No IV of 1907 concerning the laws
and customs of war on land. De Martens Clause is expressive of humanitarianism which formed
the basis of the Hague convention no IV of 1907. It made an attempt to accommodate military
requirements to the principle of humanity in war. It finds expression also in the four Geneva
Contentions as well as in Article 1 (2) if additional Protocol I which states: ―In cases not covered
by this Protocol or by other international agreements, civilians and combatants remain under the
protection and authority of the principles of international law derived from established custom,
from the principles of humanity and from the dictates of the public conscience‖.
In due course of time, De Martens Clause has percolated into the corpus of general international
law. It balances military necessity against the requirements of humanity. The First World War
demonstrated the inadequacy of the Hague Conventions. The mankind was particularly shocked
by the use of poisonous gases during the war. In 1925, a Protocol was adopted for the prohibition
of the use in war of asphyxiating, poisonous, and other gases, and of bacteriological methods of
warfare. The Protocol banned not only chemical means of warfare but even the bacteriological
means of warfare.
The principles embodied in the Hague Convention and regulations on land warfare of 1899/1907
had, by the time of the outbreak of the second world war, been so widely accepted by the states
that they became part of customary international law. This view was endorsed by the
International Military Tribunal at Nuremburg in its judgment of the major war criminals.
THE NEW YORK TREND

Initially, The United Nations did not take any interest to further develop international
humanitarian law and concentrated on the acceleration of the momentum of the movement for
the protection and promotion of human right in peacetime alone. However, the United Nations
was compelled not to lose sight of the issue of individual responsibility for war crimes when the
major war criminals were brought to trial shortly after Second World War. The basis of their

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prosecution lay in the charter of the International Military Tribunal. The Charter defined three
categories of war-crimes, namely, crimes against peace, war-crimes, and crimes against
humanity. It also stated the principle of individual criminal liability notably that the official
position of the defendants would not be considered as freeing them of responsibility or
mitigating punishment. It was also stated that the plea of superior orders would not free a
defendant form responsibility but might be considered in the mitigation of punishment if the
Tribunal determined that justice so required. In 1946, the United Nations General Assembly
reaffirmed these principles as generally valid principles of international law.
The United Nations in the course of time has shifted its focus from human rights in times of
peace alone to alone to human rights in times of peace as well as war. The United Nations has
found justification for this shift in the charter of the United Nations whose mandate is protection
and promotion of human rights without any distinction of peacetime and wartime. The shift in
the focus of the United Nations has conferred the status of human rights international
humanitarian law which applies in the event of armed conflicts. In 1968, the General Assembly
adopted a resolution entitled Respect for Human rights in Armed Conflicts and invited the
Secretary-General to carry our studies in consultation with International Committee of the Red
Cross (ICRC) in this regard.
In 1974, at Geneva, a Diplomatic Conference on the Reaffirmation and Development of

International Humanitarian Law in Armed Conflict was convened which resulted in the adoption
in 1977 of the two Additional Protocols to the Geneva Conventions of 1949, Protocol I for the
protection of victims of international armed conflicts and protocol II for the protection of victims
of internal armed conflicts.
Recently, the International Law Commission as prepared a draft code of offences against peace
and security of mankind. Article 13 of the code defines war-crimes as serious violations of laws
and custom of war. It further clarifies that war means any international or non-international
armed conflict defined in Article 2 common to the Geneva Conventions of 1949 and in Article 1,
paragraph 4 of Additional Protocol I of 1977. Article 4 of the draft code offence and therefore
every state has the duty to try or extradite any perpetrator of such offence.

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CHAPTER 21
LEADING CASES ON PUBLIC INTERNATIONAL LAW
(1) NORTH SEA CONTINENTAL SHELF CASES (GERMANY v. DENMARK;

GERMANY v. NETHERLANDS) [1969] ICJ Reports
Fact: Germany‘s coastline was concave, so the Dutch/Danish method of equidistant lines would
have reduced German sea control drastically. Germany had actually signed an agreement to that
effect at a party, but when it sobered up it decided not to ratify it. The agreement didn‘t say it
was binding upon being signed, so it wasn‘t binding on Germany until it was ratified (Geneva
Convention of 1958). That didn‘t mean Holland & Denmark couldn‘t argue that it was binding as
customary international law, since everyone else was doing it. There are 3 ways the treaty could
have become binding customary international law:
4. The treaty re-stated a pre-existing custom.
5. The treaty‘s rule crystallized customary law that had been in the process of formation.
6. The treaty‘s rule generated a new customary law following its adoption.
Significance: Holland & Denmark argued that this treaty had generated a new customary law, a
new norm of international law binding on everyone. That wasn‘t such a good argument, because
Germany had repudiated the treaty. Also, there had been very little time since the treaty
[customary international law can be created in a short time, but the presumption is that it isn‘t].
Also, only a few countries were using this rule, and even then they had resorted to equidistance
out of frustration, not because they felt it was a binding legal obligation. Also, it was not
apparent that the provision was a norm-creating provision. It was a secondary provision only.
Also, the treaty permitted reservations, and many countries had made their reservations known.
That was hardly acceptance of a norm-creating law. The ICJ therefore held that there was no
customary international law for the Dutch/Danish position. The ICJ stated that the custom-
practice in question must have ―occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved.‖
(2) ALABAMA CLAIMS ARBITRATION (1872)

Facts: During the American Civil War, certain commerce destroying vessels were constructed
and fitted out in England for Confederate Navy, the Navy of the party opposing the legally
constituted Government. The United States Government alleged a breach of neutrality on the part
of the British Government; as it had failed to exercise due care to prevent the construction of the
vessels and their dispatch to the Confederates. The United States Government put forth its claim
for damages through the activities of the vessel in the Civil War. The Alabama was one of those
vessels. The dispute was referred to arbitration. The arbitrators decided in favor of the United
States Government.

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Significance:
This case was a landmark in the history of international law, as it proved arbitration as a method
of development of international law. It was held in this case that a breach of obligations by a
neutral state will give rise to reparation in international law.
(3) THE AMBROSE LIGHT (1885)

Facts: An armed vessel, the Ambrose Light, commissioned by Colombian insurgents, was seized
by the United States Government as a pirate, because there had been no express recognition of
the insurgents as belligerents. The American Nonfederal Court held that the seizure was proper.
Significance: According to this case, all unrecognized insurgents, if they were to operate on the
sea, will be pirates. However, it may be noted that the British view is different. According to that
view, insurgent vessels cannot be British view is different. According to that view, insurgent
vessels cannot be treated as pirates, so long as they abstain from repeated or willful acts of
violence against the lives and properties of British subjects.
(4) ANGLO-IRANIAN OIL CO. (JURISDICTION 1962)

Facts: On April, 1933, the lanai Government granted a Concession to the Anglo-lain Oil Co. for
a period of 60 years. All differences related to the Concession were to be submitted to arbitration
by the three Arbitrators, one each to be appointed by the Company and by the Government and
the Umpire by two Arbitrators jointly. If there was no agreement on this point, either party could
apply to the President of the World Court to make the appointment. Similarly, if one of the
parties failed to make an appointment, the other party could apply to the president of the World
Court to appoint a sole Arbitrator. It was further agreed that the performance of the agreement
would be based ―on principles of mutual good-will and good faith whilst on a reasonable
interpretation‖ of the agreement, and the Government of loran agreed that the Concession ―shall
not be annulled and the terms shall not be altered either by general and special Legislation in the
future, or be administrative measures or any other Acts whatever of the Executive authority‖.
IN 1951, THE Iranian Government passed a Law nationalizing the oil industry in Loran. On the
failure of the Iranian Government to appoint an Arbitrator, the Company asked the President of
the World Court to appoint a Sole Arbitrator. The British Government, claiming to exercise its
right of diplomatic protection, submitted an application to the World Court in the light of the
Declaration under the ‗Optional Clause‘ of the Courts‘ state made by both the parties. Before
hearing on the merits, the Court made an order for interim measures of protection. It was the
contention of the Iranian government that it‘s of declaration under the ‗Optional Clause‘
naturally referred to treaties and conventions accepted by it after ratification of the Declaration.
The agreement with the Anglo-Iranian Oil Company, not being a treaty or a Convention, the
Court had no jurisdiction. The Court found, by a majority vote, that it had no jurisdiction.

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Significance: The Contract signed between the Iranian Government and the Anglo-Iranian Oil
Company, being in the nature of a concessionary contract between a Government and a Foreign
Corporation, the United Kingdom was not a party to the contract. There were no privities of
contract between the Government of Iran and the Government of the United Kingdom. An
implied treaty between the two Governments could not be inferred, as weighty proof is required
of such implied treaty. The International Court of Justice can exercise jurisdiction if there is
voluntary submission to jurisdiction by either party. When a unilateral reference of a dispute is
made to the Court by one party, assent by conduct consistently denies that the Court had
jurisdiction.
(5) ANGLO-NORWEGIAN FISHERIES CASE (1951)

Facts: A decree of the Norwegian Government was promulgated in 1935, purporting to define its
fisheries zone, by reference to base lines drawn through 48 selected points on the main land. The
sea enclosed by these lines and the adjoining seaward belt of waters to a width of four miles was
to constitute the zone. The result of the decree was to include large stretches of sea, including
coastal indentation which normally would have been open sea in which other states would have
been entitled to fish. Great Britain challenged the validity of the decree on the ground that it was
contrary to international law. The dispute was referred to the International Court of Justice. The
International Court of Justice gave its decision in 1951, holding that the method followed in the
decree and the actual lines themselves did not contravene international law.
Significance: The decision of the International Court of Justice in this case is considered a
landmark in the development of the law regarding territorial waters. The International Court of
Justice held in this case-
 That if a littoral state defines its territorial waters by reference to base lines comprising of
points on the main land and the islands and the rocks, it is not contrary to international
law, provided such drawing of the line is not contrary to international law, provided such
drawing of the line is reasonable, just and not arbitrary.
 Those base lines need not be drawn parallel to the law water mark on the coast, so long as
the general direction of the shore is followed.
 That the waters of bays and gulfs may be deemed part of the territorial waters,
notwithstanding that the distance between the head lands is greater than ten miles.
Apart from this principle regarding the base line, the case has other far-reaching consequences:
The International Court of Justice held, in this case, that the maritime belt is not so much a
limited artificial extension of a state‘s territorial domain, but is a contiguous area wherein, for
economic security and geographical reasons, the coastal state is entitled to exercise exclusive
sovereign rights. According to this decision, a state might take even its economic interest into
consideration while defining the maritime belt.

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Another contribution of this case is that, by implication, it defined the seas or the open sea as all
parts of the sea which are not-the territorial sea, or internal waters.
Further, this case shows that the International Court of Justice is free to develop international
law, without being tied by the weight of practice and authority. But the decision has been
criticized by many of the failure of the International Court of Justice to pay proper regard to the
weight of practice and judicial precedence.
(9) CASE CONCERNING BARCELONA TRACTION LIGHT & POWER CO. (SECOND
PHASE), (1970)
In the case concerning the Barcelona Traction Light and Power Co. Ltd. (Second Phase), an
interesting question arose, as to whether the state is entitled to espouse the claim of companies
and its shareholders. In this case, the Barcelona Traction Light & Power Co. Ltd. was
incorporated in Canada, and it was operating in Spain. But a considerable investment in the
Company was made by shareholders in Belgium. Certain action taken by the Government of
Spain caused serious loss and damage to the Company. In the eyes of law, the company was of
Canadian nationality, though the majority of the shareholders affected were Belgian nationals.
The Government of Belgium espoused the cause of its citizens as shareholder.
The International Court of Justice came to the following conclusions:

 Only the national state of a Company concerned was entitled to exercise diplomatic
proceedings for the purpose of seeking redress of the wrong done to the company.
 When a wrong is done to the Company, the wrongdoer is not libel to the shareholders.
Therefore, the Spanish Started was not liable to the Belgian shareholders.
 As Canada had not espoused the cause, Belgium had no locus stand to espouses, before
the Court of International of Justice, the claims of Belgian nationals who were
shareholders in the Company.
(10) CHUNG CHI CHEUNG v. R. (1939)

Facts: Chung Chi Cheung, a cabin boy on board Chinese armed public ship, shot and killed its
Captain, while the vessel was in the Honking territorial waters. He also shot and wounded
another officer of the ship. The ship proceeded to Honking, and Chung Chi Cheung was charged
with murder ―in the waters of their colony‖ and duly committed. Both he and the murdered
Captain were British nationals. The Chinese authorities instituted extradition proceedings on the
ground that the offence was committed in a Chinese public ship. The extradition was refused.
The accused was convicted and sentenced to death. He went in appeal to the Privy Council. On
the particular facts of the case, it was held that the Honking Court had jurisdiction.

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Significance: This case held that international law was to be treated as incorporated into the
domestic law, so far as it was not inconsistent with any rule enacted by statutes or finally
declared by the Tribunals. The Privy Council rejected in this case the ―Floating Island‖ Theory
of a public ship, and it held that the territorial court accords to the ship and its crew immunity
depending, not on an objective theory that the public ship is part of a foreign territory, but on an
implication of an exemption granted by the local territorial law. The immunity conceded by local
law is conditional, and can, in turn, be waived by the state to which the public ship belongs. But
at the same time, it held that the public ship enjoys the jurisdictional immunity, only so far as it
is necessary to enable such public vessel to function efficiently as an organ of the state and for
the purposes of the state.
(13) CORFU CHANNEL (MERITS) CASE (1949)

Facts: The Corfu Channel constitutes frontiers between Albania and Greece. The British
warships passing through the same channel were seriously damaged by mines in the Albania
territorial waters. This damage, done on 22nd October, 1946, not only caused damage to the
warships, but also resulted in the death of and injuries to several persons in November, 1946, the
Units of the British Navy. The matter was taken before the Security Council. Then, the dispute
was referred to the International Court of Justice. Apart from this preliminary question, two
questions were raised in this case:
1. Was Albania responsible under international law for the damage caused and loss of
human life by explosions in its territorial waters? It so, was Albania liable to pay
compensation to Great Britain?
2. Had Great Britain violated the sovereignty of Albania, by carrying on the mine sweeping
operations in the territorial waters of Albania?
It was held that Albania was responsible for the damage caused as it was negligent in not giving
warning to ships. It was also negligent in not trying to find out and punish those who were
responsible for laying the mines.
On the second question, the International Court of Justice held that, by carrying on the mine
sweeping operations in the territorial waters of Albania, without its consent, the United Kingdom
had violated the sovereignty of Albania, and thereby was guilty of intervention not justifiable in
international law.
Significance: The International Court of Justice stated in this case that: It was a ―generally well-
recognized principle that every state is under an obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other states‖. Warships are, in times of peace, entitled to
a right of inoffensive passage through such parts of the territorial sea as form an international
highway, and cannot be prohibited from exercising this right. The decisive criterion of a strait as
a highway was its geographical situations, as connecting two parts of the open sea and the fact of

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its use for international navigation, and not whether there was considerable volume of traffic
passing through it.
(14) THE CORFU CHANNEL (PRELIMINARY OBJECTION) CASE (1948)

It was held that the Security council could not subject a member state to the compulsory
jurisdiction of the International Court of Justice, by calling upon the parties to adjust their
differences by judicial settlement, if either of the parties to the dispute had not accepted the
compulsory jurisdiction of the Court either under a treaty or under a convention or by a
declaration under Article 36 of the statute.
(15) THE CRISTINA (COMPANIA NAVIERS VASCONGADO v. CRISTINA S.S.) (1938)

Facts: During the Spanish Civil War (1936-1939), General Franco‘s Army captured from the
Republican Government, the Port of Bilbao. The Cristina was a ship registered at Bilbao. The
Republican Government issued a decree a week later, requisitioning all ships registered at
Bilbao. When the Cristina arrived in the British Port, she was taken charge of by the Spanish
consul. The original owners of the vessels raised an action by a writ in ram and claimed
possession of the vessel as sole owners. The Spanish Government entered a conditional
appearance and contended that the action be dismissed as it imp leaded a foreign sovereign state.
The House of Lords held, in appeal, that the contention of the Spanish government was good,
and that a sovereign state could not be imp leaded, unless it consented. It was also held that as
the Spanish Government took possession of Cristina under a requisition order, the vessel was
brought within the description of public property of the state. Therefore, it was immune from the
jurisdiction of the English Courts.
Significance: The House of Lords observed in this case that, as a condition of obtaining
immunity, the foreign Government needs only to produce evidence showing that ―its claim is not
merely illusory, nor founded on a title manifestly defective‖. Another problem discussed in this
case was whether the state-owned commercial ships should enjoy immunity. Lord Maugham
observed that as diplomatic representations made to foreign state would render a very uncertain
remedy, the foreign state-owned commercial ships should not enjoy the immunity. However, it
may be noted that the majority held that immunity would extend to state-owned commercial
ships also.
(17) DUFF DEVELOPMENT COMPANY v. KELANTAN GOVERNMENT (1924)

Facts: In 1912, the Government of Kelantan entered into an agreement with the Duff
Development Co. Ltd. and granted it certain rights of mining, etc. an arbitration clause was
added in the agreement. In 1921, a dispute was referred to arbitration, and an award was made in
favor of the Duff Development Company. An attempt was made to enforce the award against the
Government of Kelantan. The Court of Appeal held, reversing the judgment of the lower Court,
that as the Government of Kelantan was a Sovereign Government, the English Court could not

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exercise jurisdiction. This decision was confirmed by the House of Lords. The contortion of the
plaintiff company was that Kelantan was not an independent state, as it was in the position of a
protectorate of Great Britain. The House of Lords held that, although not completely
independent, a protected state may enjoy sufficient measure of sovereignty to claim jurisdictional
immunities in the territory of another state.
Significance: This case is also illustrative of the practice of the English Courts that regarding the
nature of a foreign state, the British Courts seek the opinion of the executive and accept such
opinion as the best evidence of the status of the concerned foreign state.
This case also lays down that a submission to arbitration proceeding, or evens a subsequent
application to set aside these proceedings, does not amount to waiver or immunity or to a
submission to the jurisdiction of the British Courts.
(18) EASTERN GREENLAND CASE (1933)

Facts: The dispute in this case arose between Denmark and Norway regarding Denmark‘s claim
of sovereignty over the whole of Greenland. The foreign ministers of these two Governments
had discussed the matter, and the foreign minister for Norway had assured that the plans of the
Danish Government respecting Danish sovereignty over the whole of Greenland would meet
with no difficulties on the part of Norway. This assurance was regarding Norway‘s attitude at the
Paris Peace Conference of 1919.
The question to be decided by the International Court of Justice was whether the declaration
made by the foreign minister for Norway did not constitute an engagement, obliging Norway to
refrain from occupying any part of the territory of Greenland. It was held that an oral declaration
in the nature of a promise made by the minister for foreign affairs of one country on behalf of the
country to the minister of foreign affairs of another, and in a matter within his competence and
authority, may be as binding as a formal written treaty. International Law does not as yet require
established forms of treaties.
Significance: The Court also lay down, in this case, that occupation, to be effective, requires, on
the part of the appropriating state, two elements:
1. An intention or will or will to act as sovereign, and
2. The adequate exercise or display of sovereignty.
(20) THE FRANCONIA CASE (R. v. KEYN) (1876)

Facts: The Franconia, a German Steamer, collided with Strathclyde, a British steam vessel, on
the sea, at a distance of about two miles from Dover pear-head. Key, the Officer-in-Command of
the Franconia, it was alleged, was negligent. On account of the collision, a person in Strathclyde
died. Key was indicted for manslaughter and convicted by the lower Court. A question of law
was reserved by the Court of Appeal had to decide whether the English Courts could exercise

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jurisdiction over an offence committed within a distance of three miles from the English shore. It
was held, by a majority, that the English Court had jurisdiction over such offence.
Significance: It was held in this case that International Law was not part of English law, unless
adopted by legislation. This case also is interesting for the views of Lore Coleridge regarding the
nature of international law. His Lordship observed, ―Strictly speaking, International Law is an
inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a
law giver, a tribunal capable of enforcing it and coercing its transgressors. But there is no
common law giver to sovereign state and no tribunal has the power to bind them by decrees or
coerce them if they transgress‖.
(21) THE CASE OF THE FREE ZONE‘S OF UPPER SAVOY AND GEX (1932)
Facts: The matter in dispute, is this case, was whether France had succeeded to Sardinia in the
matter of an obligation to respect territorial arrangement between Sardinia and Switzerland. It
was held that treaties which create obligations pertaining to, or for the benefit of, the territory,
will pass in succession.
Significance: The Permanent Court of International Justice pointed out in this case that the
operation of the right of a third state, which is not a party to the treaty, is not likely to be
presumed: much depend on the circumstances of each case. But, if the parties intended to confer
rights on a state which was not a party, this intention may be decisive. In this case, the
Permanent Court of International Justice adopted the subjective theory of the doctrine of rebus
sic stantibus.
(22) CASE OF EXTRADITION TO HAYA DE LA TORRE (1951) (ASYLUM CASE)

Hay De La Torre, a political leader of Peru, had been accused of having instigated a military
rebellion in Peru. He sought refuge in the Columbian Embassy, which was granted by the
Columbian Ambassador. The Government of Peru refused to issue a safe conduct for the
departure of Hay De La Torre. The Government of Columbia moved the International of Court
Justice. The International of Court Justice held that the asylum granted to the accused by the
Columbian Embassy was irregular, as there was no urgency though if there was urgency, the
accused would be entitled to such asylum.
(24) I‘M ALONE CASE (1929) (B. U. APR. 83)

Facts: The ship ―I‘m Alone‖ was British Schooner of Canadian Registry. The ship was engaged
in the smuggling of alcohol into the United States. This ship was sunk in 1929 by United States
Coast Guard vessel, at a point on the high seas more than 200 miles from the United States
course. The Canadian Government claimed damages. The matter was referred to arbitration. The
award was in favor of Canada.

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The argument of the Unites states was that the ship was in fact owned by the American nationals,
though de jure, the ship was of Canadian nationality. It was also urged that the damages awarded
would ultimately go to the pockets of American citizens. But these contentions, on behalf of the
United States of America, were of no avail. The Canadian Government was entitled to claim, as
injury was caused to a ship of its nationality.
The other significance of the case is that the Arbitral tribunal awarded two separate heads of
damages, the other being in respect of injury to the claimant state.
It may be noted here that such an award made in the I‘m Alone case is consistent with the views
expressed by the International Court of Justice in its Advisory Opinion on Reparation for injury
suffered in the service of the United Nations (1949).
(25) JUDGMENTS OF ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL

LABOUR ORGANISATION UPON COMPLAINTS MADE AGAINST UNESCO (1956)
The facts: Certain employees of the UNESCO were appointed with UNESCO on a fixed term.
Subsequently, the appointments were renewed. Such renewed appointments were due to expire
on 31st December, 1954. These employees were asked from the representative of their national
state for UNESCO to furnish certain information, to answer a questionnaire and to appear before
the Loyalty Board of their state Embassy in Paris. All these were executive orders. The
concerned employees informed the Director General of UNESCO of their decision not to appear
before the Board and of the reason of conscience which caused them to take such decision.
Consequently, the Director General issued an Administrative Memorandum on the subject of
nonrenewal of appointments expiring at the end of 1954, while the appointment of others were
renewed, to which the concerned employees complained to the Administrative Tribunal of the
International Labor Organization. The Tribunal declared its competence to entertain the
complaint and gave a decision on the merits of the complaint.
The Executive Board of the UNESCO sought an advisory opinion of the International of Court
Justice on the competence of the Tribunal and the validity of its judgment. Under Article 11 of
the statute of the tribunal, advisory opinion of the International Court could be sought
complaining against the judgment of the Tribunal by the following:
1. A member‘s state;
2. The secretary-general; or
3. The person in respect of whom a judgment was made (including any person who had
succeeded to that person‘s right on his death), and the statute further provided that the
challenge may be made on the following grounds:
 That the tribunal has ―exceeded its jurisdiction or competence‖;
 That the tribunal had ―failed to exercise jurisdiction vested in it‖;
 That it has ―erred on a question of law relating to the provisions‖ of the U. N.
Charter; or

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 That it has committed ―a fundamental error in procedure which has occasioned a

failure of justice‖.
The Executive Board raised the following issues, and the court answered them accordingly: Was
the Administrative Tribunal competent under Article 11 of the statute to hear the complaints
against UNESCO?. The Court, after examining the problem in detail, gave a positive answer.
The competence of the Administrative Tribunal to determine the power of the Director General
to renew fixed term appointment was also challenged. The ICJ did not think it necessary to
answer this question, as it accepted the judgment of the Tribunal.
(28) LIANDOVER CASTLE (1923-24)

During the Fits World War, a German killed a defenseless person in a life-boat, and when he was
accused, he pleaded the order of the superiors as a defense. His plea was rejected on the ground
that such an order was ―universally known to be against the law‖. It was also held that such
order might be an extenuating circumstance, but it does not absolve a person from the crime
committed by him.
(29) THE LOTUS CASE (1927)

Facts: The French mail steamer, the Lotus, collided on the high seas with a Turkish ship. It was
alleged that the collision was due to the gross negligence of the officer of the watch on board the
Lotus. The result was that the Turkish ship sank, and eight Turkish nationals on board died. The
collision took place on the high seas. Subsequently, the crew members of the Lotus were taken to
Constantinople. The Turkish authorities instituted proceedings against the officer of the watch,
basing their claim to jurisdiction on the ground that the act of negligence on board the Lotus had
produced effects on the Turkish ship, and according to the objective territorial principle, the
Turkish authorities were justified in exercising the jurisdiction. France protested against this
exercise of jurisdiction by the Turkish authorities. The dispute was referred to the Permanent
Court of International Justice. By a majority decision, the Permanent Court held that the action
of Turkish authorities was not inconsistent with international law.
Significance: This case is also an authority on the ‗floating island‘ theory of a ship. The
International Court of Justice considered the effect of the negligence on the Turkish ship to be an
effect on an operation of Turkish authority, and therefore, the objective territorial principle was
applicable. It was also pointed out in this case that no presumption of immunity arises from the
fact that the person against whom the proceedings are taken is a foreigner. However, one of the
judges in this case pointed out that an article of the Turkish Penal Code, whereby jurisdiction
was asserted over foreigners committing offences abroad ―to the prejudice‖ of a Turkish subject,
was contrary to international law. According to him, the passive nationality principle of
jurisdiction was not to be generally accepted. The same view is also supported in the cutting
case.

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It may be noted that the objective territorial principle of jurisdiction as laid down in the Lotus
case was not generally acceptable to mariners, and it has been disapproved by the Conference at
Brussels in 1962, which adopted the Convention for the unification of certain rules relating to
Penal jurisdiction in matters of collision and other incidents of navigation. It may also be noted
that the International Law commission has disapproved of the rule laid down in the Lotus case.
This case is also significant in that the Permanent Court of International Justice had recourse to
juristic opinion for ascertaining the existence or non-existence of a customary rule. This is also
significant in view of the fact that the court refused to deduce a customary rule where state
judicial decisions on the point were divided.
It must be noted; however, that the principle lay down in the Lotus Case has not been approved
by the International Law Commission. The Brussels Convention for the Unification of Certain
Rules relating to Penal Jurisdiction in Matters of Collision and other incidents of Navigation,
now provides for the exclusive jurisdiction of the flag state in penal or disciplinary proceedings
out of collision cases, subject to penal and disciplinary jurisdiction being conceded to a non-flag
state over an accused person of its nationality.
(30) LATHER v. SAGOR

Fact: In June 1918, the Russian Socialist Federal Soviet Republic passed a decree nationalizing
mechanical saw mills and wood working establishments belonging to private and limited
Companies, and took over the plaintiffs‘ mill and certain manufacturing goods belonging to them
in Russia.
The representative of the Russian Commercial Delegation in London made a contract with the
defendants in August 1920, for the sale and delivery of a quantity of timber, including some of
them seized from the plaintiffs. The plaintiffs sought a declaration that these goods were their
property, an injunction restraining the defendants from selling, and damages for conversion and
detention. The defendants argued that the decree of June 1918 was the Act of a sovereign
Government and was valid to deprive the plaintiffs of the title and convey it to the defendants. In
the Court of First Instance, the following letters from the Foreign Office were admitted:
 To the solicitor of the Russian Commercial representative, that he was regarded as a
foreign representative for certain purposes and should be exempt from the process of the
Court.
 To the defendants‘ Solicitors, recognizing the claim of the Delegation to represent in this
country a state Government of Russia.
 To the plaintiffs‘ solicitors, pointing out that the representative received privileged
treatment for certain limited purposes, but his Majesty‘s Government had never officially
recognized the soviet Government in any way.

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The Court of First Instance gave judgment for the plaintiff, on the basis that the Russian
Government had not been recognized. In the Appellate Court, the defendants produced further
letters from the Foreign Office- one of which stated that His Majesty‘s Government recognized
the Soviet Government as the de fact Government of Russia. The Court of Appeal allowed the
appeal.
Significance: Recognition is retroactive to such duty as the recognizing Government might

accept. For the present purpose, there is no difference between a Government recognized de jure
and one recognized de fact. The Court of England will recognize and give effect to the Acts of a
de facto Government in relation to person and property in the Government territory, and will
disregard and treat as annulled the Acts of a de jure Government.
(32) MIGHEL v. SULTAN OF JOHRE [(1894) Q.B. 149]

Facts: The Sultan of Johor, whilst staying in Great Britain, introduced himself by the assumed
name of ―Albert Baker‖. He did not reveal that he was a foreign sovereign. He promised to
marry the plaintiff. He did not carry out his promise. It was contended on his behalf that the
Court had no jurisdiction, as he was a sovereign, independent ruler and he had not submitted to
the jurisdiction of the Court. It was contended, on behalf of the plaintiff that since the Sultan
lived as private citizen under a false name, if would amount to waiver of immunity, and
therefore, the English Courts could exercise jurisdiction over him. The Court of Appeal, as well
as the Court of First Instance, held that jurisdiction could not be exercised over the Sultan of the
state of Johor, as living in cogito did not amount to voluntary submission to the jurisdiction of
the English Court.
The significance of this case is that the immunity given to foreign sovereign prevents a Court
from exercising jurisdiction, unless such foreign sovereign waives his immunity and voluntarily
submits himself to the jurisdiction of the Court at the date of institution of proceedings. His
conductor agreement, implied or express, to submit himself to the law of a Country does not
amount to submission.
(37) THE ISLAND OF PALMAS ARBITRATION

FACTS: The Palmas Island is situated half-way between the Philippine Islands and the former
Netherland East Indies. In 1906, there was a dispute between the U.S.A. and the Netherlands
regarding sovereignty over this Island. The contention of the American Government was that the
Island was ceded to the U.S. by the treaty of 1808 by Spain. The Dutch Government maintained
that the Island was a part of its territory, and the Spain, from whom the U.S.A. claimed to have
acquired sovereignty over the island, never had any right over the same. The dispute was referred
to the Permanent Court of Arbitration. It was held that, though Spain was responsible for the
discovery of island, it was not in effective control of the Island. On the other hand, the

326
Netherland‘s East India Company was in possession of the Island and exercised sovereignty over
the same since 1677.
Significance:
(a) In his Award, Max Huber, the Arbitrator, described sovereignty in these terms- ―Sovereignty,
in the relation between states, signifies independence. Independence in regard to a portion of
the globe is the right to exercise therein, to the exclusion of any other state, the functions of a
state‖.
(b) It was also held in this case that if a state were to occupy a territory, there must be display of
effective control and authority either by the claiming sovereignty or by a state from which
the state claiming sovereignty can prove that the title has been derived.
(c) It is claimed by some writers that the award in the Island of Palmas case is an authority to
support the doctrine of acquisitive prescription in International Law.
(38) PAQUETE HABANA (1900)

FACTS: The Paquet Habana, a fishing boat, and another fishing boat, Lola, flying the Spanish
flag, and belonging to the Spanish subjects, were captured by a United States warship engaged in
the North coast on Cuba. They were brought before the Court for condemnation. The question
that was to be decided was whether, under customary International Law, fishing boats were
exempt from capture. The Supreme Court of the U.S.A. reversing the other of the lower Court
held that they were free from capture.
Significance:
(a) This case is illustrative of the attitude of the American Courts toward International Law.
During the course of the judgment, Gray. J. made the following remarks: ―International Law
is part of outlaw, and must be ascertained and administered by the Courts of Justice of
appropriate jurisdiction, as often as questions of right depending upon it are duly presented
for their determination‖.
(b) This case is also illustrative of the judicial method in the application of custom. The Supreme
Court, after a detailed investigation of state laws and practice, treaties, writings of publicists
evidencing usage and decisions of courts, found that they uniformly proved the existence of a
valid customary rule giving immunity to small fishing vessels from belligerent action in
times of war.
(c) This case is also illustrative of the function of state judicial decisions in clarifying an
international nature of custom and law.
In this case, Gray, J. also pointed out that the juristic works have the value of being, on many
occasions, the evidence of International law. He observes, ―Such works are resorted to by
judicial tribunals, not for the speculation of their authors concerning what the law ought to be,
but for trustworthy evidence of what the law really is‖.

327
(39) PARLEMENT BELGE (1679)

Facts: The Parliament Bilge was a Belgian mail vessel belonging to the King of Belgium. In
addition to mil duties, it was also used for trading purposes. The vessel collided against a British
ship in the Dover Harbor. Proceedings against the Parliament Bilge were started to recover
damages. It was held by the Court of Appeal that the British Courts had no jurisdiction over the
Parliament Bilge, as it was the property of the King of Belgium.
Significance: This case supports the doctoring of the immunity of state-owned trading vessels.
[A reference may be made to the Cristina case, where this doctrine was approved by the British
Courts.]
(40) PREACH VIHER CASE (1962)

In the case, concerning the Temple of Preach Vinegar (Merits) (Cambodia-Thailand) I.C.J.
Reports (1962) 9, the disputed area was the region of a certain Temple sanctuary (Preach
Vinegar), and there was a conflict between the frontier according to a Treaty of 1904, whereby it
was to follow a watershed line, and the frontiers according to boundary maps competed in 1907
and communicated in 1908 to the Siamese (now Thai) Government. As the Siamese
Government, and later the Thai Government, had, by their conduct, apparently accepted the map
frontier line, the court held that the map line should be preferred, and that the Temple area was
under the Sovereignty of Cambodia.
(41) REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UN, ICJ
REPORTS (1942) 174
In 1948, certain agents and officers of the United Nations suffered injuries in Palestine, and
Count Folk Bernadotte, United Nations Mediator, was assassinated. There arose a question as to
whether the United Nations could claim compensation as against a de jure or de facto
Government, even though such Government was not a member state of the organization. In this
connection, the following questions arose:
(1) As a state could claim damages against injuries caused to it diplomatic agents, could the
United Nations Organization also claim damages for injuries caused to its agents or servants?
This, in turn, raised the question as to whether it enjoyed international personality.
(2) If such agents or secants were nationals of another state, could the United Nations also claim
damages?
This matter was referred for an advisory opinion of the intonation Court of Justice. The
International Court of Justice gave its advisory opinion in 1949. It laid down the following
principles:
(1) Though the United Nations is not a state and does not have all the attributes of a state, it his
international personality and it is an international person.

328
(2) Therefore, if an agent of the United Nations, in the performance of his duties, suffered the
injury in circumstances involving the responsibility of a Member state, the United Nations
has the capacity to bring an international claim against the responsible de jure or de facto
government, the claim being with a view to obtain the reparation due in respect of the
damage caused to the United Nations; such claim can also be brought against the state, even
though it is not a member of the United nations.
(3) Such a claim could also be in respect of the damage caused to the victims or to persons
entitled through such persons.
(4) Such claim in respect of damage caused to the victim or to person entitled through him may
be claimed, whether the responsible state is a Members state or not.
(5) These claims, being based upon a breach of obligations due to the United Nations, there will
not be a conflict between the action of the United Nations and such rights as the individual
national state may possess. The claims can be reconciled as there is no conflict. The claims
of the individual national state and the United Nations Organization are based on different
grounds. However, there may be need for reconciliation these claims on the basis of
agreements to be made between the organizations and individual states, either generally or in
each case.
(45) THE SCHOONER EXCHANGE v. MCFADDEN (1812)

Facts: The Schooner Exchange, which was at Philadelphia, was an armed ship under the control
of France. McFadden and another alleged that they were the sole owners of the Schooner
Exchange which sailed from Baltimore for a port in Spain on October 27, 1809, that the vessel
was seized under the decrees and orders of Napoleon, and it was disposed of, though no sentence
of condemnation had been passed by a court of competent jurisdiction. The contention of the
American Government was that, as there was peace between the united stares and Napoleon, the
public vessels of France could freely enter the ports of the United Sets and depart there from.
Even though the ship had been captured, it had become vested in His Majesty Napoleon
according to the laws of France, and therefore, the American Courts could not exercise
jurisdiction over such a ship. Marshall C.J. of the Supreme Court of the U.S.A. held, ―The
national ships of war entering the port of a friendly power open for their reception are to be
considered as exempted by the consent of the power from its jurisdiction‖.
Significance:
(a) In this case the immunity of public vessels was based on ―an implied license‖ to enter a port,
the license containing an exemption from jurisdiction of the state which granted the right of
hospitality.
(b) It was also held in this case that a state which admits to its territory armed forces of a
friendly foreign power, impliedly undertakes not to exercise any jurisdiction over the force
any jurisdiction over the force which would be inconsistent with its continuing to exist as an
efficient force. In brief, it was held that no jurisdiction could be exercised over members of
the visiting force in such a way as to impair the integrity and efficiency of the force.

329
(46) SOUTH-WEST AFRICA CASES

South-West Africa was administered by South Africa under a mandate agreement with the
League of Nations supervision of the carrying out of the mandate was vested in the council of the
League, to which annual reports had to be submitted by South Africa, in accordance with Article
22 of the Covenant of the League and Article 6 of the mandate. In a resolution of 18 th April,
1946, the Assembly of the League has recognized that, ―on the termination of the League‘s
existence, its function with respect to the mandated territories will come to an end‖; it had noted
that U.N. charter embodied ―principles corresponding to those declared in Article 22 of the
Covenant‖; and it had also taken note of the expressed intentions of the members of the League
now administering territories under the mandate, to continue to administer them for the well-
being and development of the peoples concerned in accordance with the obligations contained in
the respective Mandates, until other arrangements have been made between the United Nations
and the respective mandatory Powers‖. But there was no express transfer of functions to the
United Nations.
South Africa was the only administering power which refused to enter into a trusteeship
agreement with the United Nations to supersede its mandate. Disputes had arisen had arisen with
regard to South Africa‘s obligations under the mandate, and these controversies were the subject-
matter of a number of a number of advisory opinions by the International Court. In the first case
(Status of South-West Africa. ICJ Reports, (1950), 128), the Court was asked three questions:
(1) About the continued existence of the mandate;
(2) About the applicability of Chapter 12 the Charter dealing with supervision of trusteeship
agreements of mandate; and
(3) About the competence of South Africa acting alone to modify the status of South-West
Africa.
The Court had no difficulty in answering the first and third questions. It had been obvious to all
concerned that the mandates envisaged that they should be replaced by trusteeship agreements,
but there was no obligation upon a mandatory state to enter into such an agreement. On the other
hand, the fact that the mandatory state continued to be bound by the mandate implied that it
could not unilaterally alter the status of the mandated territory.
In its advisory opinion of 1962 (South-West Africa cases, I.e., Reports, (1962), 154), the
International Court of Justice reaffirmed that a Mandate constituted a new international
institution, the primary overriding purpose of which is to promote the well-being and
development of the people of the territory under the Mandate. It also affirmed that a mandate
was a treaty between the League and the Mandatory state.
In the South-West Africa cases, Second phase (1966), the International Court of Justice dealing
with the League of Nations, ruled that an individual members state, had with reference to a

330
mandate, no separate sled-contained right to assert before the court, over and above the League‘s
collective institutional activity.
This opinion appears to be consistent with the opinion expressed in the Reparation case
regarding the international personality of international organizations. Therefore, the court held
the individual member states of the League had no legal claim or stating, by themselves, to
enforce the terms of a mandate, this being a matter for organic or institutional action.
Consequently, the court held that plaintiffs, Liberia and Ethiopia, had no legal right or interest in
the matter of apartheid in South-West Africa.
(47) ADVISORY OPINION ON THE LEGAL CONSEQUENCES FOR STATE OF THE

CONTINUED PRESENCE OF SOUGH AFRICA IN NAMIBIA (SOUTH-WEST
AFRICA) (I.C.J. REPORTS (1971), p16
In its opinion, the Court upheld and reaffirmed its views expressed in its advisory opinion of
1950. The court ruled, in addition, that the failure of South Africa to comply with its obligation
to submit to the supervision of the United Nations organs made its continued presence in South-
West Africa illegal. The court also reaffirmed the obligation of non-recognition on the part of the
member‘s states in pursuance of the directives of the Security Council. The court was of the
opinion that ―Members states, in compliance with the duty of non-recognition imposed by
paragraphs 2 and 5 of the covenant, re under an obligation to abstain from sending diplomatic or
special missions to south Africa, including in their jurisdiction the territory- of Namibia, it
abstain from sending consular agents to Namibia, and to withdraw any such agents already
there‖.
(48) STOECK v. PUBLIC TRUSTEE (1921)

Facts: Stock was both in Prussia in 1972. In 1895, he went to Belgium to live there. In 1896, he
was deprived of his Prussian nationality. After that, he did not apply for any nationality, and
consequently obtained none. In 1896, he went over to England and made that country his
permanent home. However, he did not apply for British nationality. During the First World War,
he was interned and deported to Holland. From there he shifted to Germany. He had certain
shares in a limited company of England and the Public Trustee proposed to attach his property on
the ground that he was an enemy. Stock contended that his property could not be attached, as he
was not a German national. On the basis of the evidence before him, Lord Russell came to the
conclusion that Stock had lost his German nationality. Therefore, he was a stateless person.
Significance: Russell J. observed in this case – ―The question to what state a person belongs
must ultimately be decided by the municipal law of the state of which he claims to belong or to
which it is alleged that he belongs‖. It was also held in this case that a person who seeks to
establish loss of nationality of a particular state must prove that nationality has been lost for all
purposes and with all incidence, and any possibility that a right of protection or a chance of

331
resumption of nationality still exists will prevent the onus being discharged. It was also observed,
in this case, that state-lessens is a condition recognized by both municipal law and by
International Law.
(49) CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER

COMPANY, LIMITED (PRELIMINARY OBJECTIONS) Judgment of 24 July 1964
Proceedings in the case concerning the Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain) were instituted by an Application of 19 June 1962 in which the Belgian
Government sought reparation for damage claimed to have been caused to Belgian nationals,
shareholders in the Canadian Barcelona Traction Company, by the conduct of various organs of
the Spanish State. The Spanish Government raised four Preliminary Objections. The Court
rejected the first Preliminary Objection by 12 votes to 4, and the second by 10 votes to 6. It
joined the third Objection to the merits by 9 votes to 7 and the fourth by 10 votes to 6. President
Sir Percy Spender and Judges Spiropoulos, Koretsky and Jessup appended Declarations to the
Judgment.Vice-President Wellington Koo and Judges Tanaka and Bustamante y Rivero
appended Separate Opinions. Judge Morelli and Judge ad hoc Armand-Ugon appended
Dissenting Opinions.
First Preliminary Objection

In its Judgment, the Court recalled that Belgium had on 23 September 1958 filed with the Court
an earlier Application against Spain in respect of the same facts, and Spain had then raised three
Preliminary Objections. On 23 March 1961 the Applicant, availing itself of the right conferred
upon it by Article 69, paragraph 2, of the Rules of Court, had informed the Court that it was not
going on with the proceedings; notification having been received from the Respondent that it had
no objection, the Court had removed the case from its List (10 April 1961). In its first
Preliminary Objection, the Respondent contended that this discontinuance precluded the
Applicant from bringing the present proceedings and advanced five arguments in support of its
contention.
The Court accepted the first argument, to the effect that discontinuance is a purely procedural act
the real significance of which must be sought in the attendant circumstances. On the other hand,
the Court was unable to accept the second argument namely that discontinuance must always be
taken as signifying a renunciation of any further right of action unless the right to start new
proceedings is expressly reserved. As the Applicant's notice of discontinuance contained no
motivation and was very clearly confined to the proceedings instituted by the first Application,
the Court considered that the onus of establishing that the discontinuance meant something more
than a decision to terminate those proceedings was placed upon the Respondent.
The Respondent, as its third argument, asserted that there had been an understanding between the
Parties; it recalled that the representatives of the private Belgian interests concerned had made an

332
approach with a view to opening negotiations and that the representatives of the Spanish interests
had laid down as a prior condition the final withdrawal of the claim. According to the
Respondent what was meant by this was that the discontinuance would put an end to any further
right of action, but the Applicant denied that anything more was intended than the termination of
the then current proceedings. The Court was unable to find at the governmental level any
evidence of any such understanding as was alleged by the Respondent; it seemed that the
problem had been deliberately avoided lest the foundation of the interchanges be shattered. Nor
had the Respondent, on who lay the onus of making its position clear, expressed any condition
when it indicated that it did not object to the discontinuance.
The Respondent Government then advanced a fourth argument, having the character of a plea of
estoppel, to the effect that, independently of the existence of any understanding, the Applicant
had by its conduct misled the Respondent about the import of the discontinuance, but for which
the Respondent would not have agreed to it, and would not thereby have suffered prejudice. The
Court did not consider that the alleged misleading Belgian misrepresentations had been
established and could not see what the Respondent stood to lose by agreeing to negotiate on the
basis of a simple discontinuance; if it had not agreed to the discontinuance, the previous
proceedings would simply have continued, whereas negotiations offered a possibility of finally
settling the dispute. Moreover, if the negotiations were not successful and the case started again,
it would still be possible once more to put forward the previous Preliminary Objections.
Certainly the Applicant had framed its second Application with a foreknowledge of the probable
nature of the Respondent's reply and taking it into account but, if the original proceedings had
continued, the Applicant could likewise always have modified its submissions.
The final argument was of a different order. The Respondent alleged that the present proceedings
were contrary to the spirit of the Hispano-Belgian Treaty of Conciliation, Judicial Settlement and
Arbitration of 19 July 1927 which, according to the Applicant, conferred competence on the
Court. The preliminary stages provided for by the Treaty having already been gone through in
connection with the original proceedings, the Treaty could not be invoked a second time to seise
the Court of the same complaints. The Court considered that the Treaty processes could not be
regarded as exhausted so long as the right to bring new proceedings otherwise existed and until
the case had been prosecuted to judgment. For these reasons, the Court rejected the first
Preliminary Objection.
Second Preliminary Objection

To found the jurisdiction of the Court the Applicant relied on the combined effect of Article 17
(4) of the 1927 Treaty between Belgium and Spain, according to which if the other methods of
settlement provided for in that Treaty failed either party could bring any dispute of a legal nature
before the Permanent Court of International Justice, and Article 37 of the Statute of the
International Court of Justice, which reads as follows: "Whenever a treaty or convention in force

333
provides for reference of a matter . . . to the Permanent Court of International Justice, the matter
shall, as between the parties to the present Statute, be referred to the International Court of
Justice."
As the principal aspect of its objection, the Respondent maintained that although the 1927 Treaty
might still be in force, Article 17 (4) had lapsed in April 1946 on the dissolution of the
Permanent Court to which that article referred. No substitution of the present for the former
Court had been effected in that article before the dissolution, Spain not being then a party to the
Statute; in consequence, the 1927 Treaty had ceased to contain any valid jurisdictional clause
when Spain was admitted to the United Nations and became ipso facto a party to the Statute
(December 1955). In other words Article 37 applied only between States which had become
parties to the Statute previous to the dissolution of the Permanent Court, and that dissolution had
brought about the extinction of jurisdictional clauses providing for recourse to the Permanent
Court unless they had previously been transformed by the operation of Article 37 into clauses
providing for recourse to the present Court.
The Court found that this line of reasoning had first been advanced by the Respondent after the
decision given by the Court on 26 May 1959 in the case concerning the Aerial Incident of 27
July 1955 (Israel v. Bulgaria). But that case had been concerned with a unilateral declaration in
acceptance of the compulsory jurisdiction of the Permanent Court and not with a treaty. It thus
had reference not to Article 37 but to Article 36, paragraph 5, of the Statute. As regards Article
37, the Court recalled that in 1945 its drafters had intended to preserve as many jurisdictional
clauses as possible from becoming inoperative by reason of the prospective dissolution of the
Permanent Court. It was thus difficult to suppose that they would willingly have contemplated
that the nullification of the jurisdictional clauses whose continuation it was desired to preserve
would be brought about by the very event the effects of which Article 37 was intended to parry.
Only three conditions were actually stated in Article 37. They were that there should be a treaty
in force; that it should contain a provision for the reference of a matter to the Permanent Court;
and that the dispute should be between States parties to the Statute. In the present case the
conclusion must be that the 1927 Treaty being in force and containing a provision for reference
to the Permanent Court, and the parties to the dispute being parties to the Statute, the matter was
one to be referred to the International Court of Justice, which was the competent forum.
It was objected that this view led to a situation in which the jurisdictional clause concerned was
inoperative and then after a gap of years became operative again, and it was asked whether in
those circumstances any true consent could have been given by the Respondent to the Court's
jurisdiction. The Court observed that the notion of rights and obligations that are in abeyance but
not extinguished was common; States becoming parties to the Statute after the dissolution of the
Permanent Court must be taken to have known that one of the results of their admission would

334
be the reactivation by reason of Article 37 of certain jurisdictional clauses. The contrary position
maintained by the Respondent would create discrimination between States according as to
whether they became parties to the Statute before or after the dissolution of the Permanent Court.
As regards Article 17 (4) more particularly, the Court considered that it was an integral part of
the 1927 Treaty. It would be difficult to assert that the basic obligation to submit to compulsory
adjudication provided for in the Treaty was exclusively dependent on the existence of a
particular forum. If it happened that the forum went out of existence, the obligation became
inoperative but remained substantively in existence and could be rendered operative once more if
a new tribunal was supplied by the automatic operation of some other instrument. Article 37 of
the Statute had precisely that effect.
As a subsidiary plea, the Respondent contended that if Article 37 of the Statute operated to
reactivate Article 17 (4) of the Treaty in December 1955, what came into existence at that date
was a new obligation between the Parties; and that just as the original applied only to disputes
arising after the Treaty date, so the new obligation could apply only to disputes arising after
December 1955. The dispute was accordingly not covered since it had arisen previous to
December 1955. In the opinion of the Court, when the obligation to submit to compulsory
adjudication was revived as to its operation, it could only function in accordance with the Treaty
providing for it and it continued to relate to any disputes arising after the Treaty date. For these
reasons the Court rejected the second Preliminary Objection both in its principal and in its
subsidiary aspects.
Third and Fourth Preliminary Objections

The Respondent's third and fourth Preliminary Objections involved the question of whether the
claim was admissible. The Applicant had submitted alternative pleas that these objections, unless
rejected by the Court, should be joined to the merits. By its third Preliminary Objection the
Respondent denied the legal capacity of the Applicant to protect the Belgian interests on behalf
of which it had submitted its claim. The acts complained of had taken place not in relation to any
Belgian natural or juristic person but in relation to the Barcelona Traction Company, a juristic
entity registered in Canada, the Belgian interests concerned being in the nature of shareholding
interests in that company. The Respondent contended that international law does not recognize,
in respect of injury caused by a State to the foreign company, any diplomatic protection of
shareholders exercised by a State other than the national State of the company. The Applicant
contested this view.
The Court found that the question of the jus standi of a government to protect the interests of
shareholders raised an antecedent question of what was the juridical situation in respect of
shareholding interests, as recognized by international law. The Applicant thus necessarily
invoked rights which, so it contended, were conferred on it in respect of its nationals by the rules
of international law concerning the treatment of foreigners. Hence a finding by the Court that it

335
had no jus standi would be tantamount to a finding that those rights did not exist and that the
claim was not well-founded in substance.
The third Objection had certain aspects which were of a preliminary character, but involved a
number of closely interwoven strands of mixed law, fact and status to a degree such that the
Court could not pronounce upon it at the present stage in full confidence that it was in possession
of all the elements that might have a bearing on its decisions. The proceedings on the merits
would thus place the Court in a better position to adjudicate with a full knowledge of the facts.
The foregoing considerations applied a fortiori to the fourth Preliminary Objection, wherein the
Respondent alleged failure to exhaust local remedies. This allegation was in fact inextricably
interwoven with the issues of denial of justice which constituted the major part of the merits of
the case.
Accordingly, the Court joined the third and fourth Preliminary Objections to the merits.178
178
Source::: http://www.icj-cij.org/icjwww/idecisions/isummaries/ibtsummary640724.htm

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LECTURES ON

Prof. Vijay Ghormade

Prof. Vijay Ghormade: Public International Law

CONCEPT, NATURE & BASIS OF PUBLIC INTERNATIONAL

(A) CONCEPT OF INTERNATIONAL LAW

Definitions of International Law

Prof. Vijay Ghormade: Public International Law

Bentham is the first one to use the term international law

(B) NATURE & SCOPE OF PUBLIC INTERNATIONAL LAW

According to Bentham‘s classic definition, international law is a collection of rules governing

Prof. Vijay Ghormade: Public International Law

International law is a distinctive part of the general structure of international relations. In

Prof. Vijay Ghormade: Public International Law

(C) IDENTIFICATION OF SOURCES OF INTERNATIONAL LAW

Prof. Vijay Ghormade: Public International Law

(D) INTERNATIONAL LEGAL THEORY

Prof. Vijay Ghormade: Public International Law

(E) MAJOR PLAYERS OR ACTORS IN INTERNATIONAL LAW

Institutions Involved in the Process

Prof. Vijay Ghormade: Public International Law

Prof. Vijay Ghormade: Public International Law

Special Situation Courts

Prof. Vijay Ghormade: Public International Law

ORIGIN AND HISTORICAL DEVELOPMENT OF PUBLIC

Prof. Vijay Ghormade: Public International Law

(B) EVOLUTION OF THE CONCEPT OF LAW AT INTERNATIONAL LEVEL

(C) EARLY HISTORY OF INTERNATIONAL LAW

Prof. Vijay Ghormade: Public International Law

Prof. Vijay Ghormade: Public International Law

(D) INTERNATIONAL LAW IN MIDDLE AGES

Prof. Vijay Ghormade: Public International Law

(E) DEVELOPMENT OF INTERNATIONAL LAW IN MODERN PERIOD

Prof. Vijay Ghormade: Public International Law

Prof. Vijay Ghormade: Public International Law

Prof. Vijay Ghormade: Public International Law

(F) CURRENT TRENDS IN INTERNATIONAL LAW

Prof. Vijay Ghormade: Public International Law

Prof. Vijay Ghormade: Public International Law

Prof. Vijay Ghormade: Public International Law

(B) CONCEPT OF SOURCES OF INTERNATIONAL LAW

(C) CATEGORIES OF SOURCES AND ART. 38 OF THE STATUTES OF

Sources under Article 38(1) of ICJ Statute

Prof. Vijay Ghormade: Public International Law

(1) International treaties and conventions

Additionally, a sixth source is:

(6) Decisions and determinations of the organs of international organizations.

Each of the above sources will now be discussed in necessary details.

Evidence of International Law

Prof. Vijay Ghormade: Public International Law

b) Judgments and opinions of national judicial tribunals;

(D) HIERARCHY OF SOURCES OF INTERNATIONAL LAW?

Prof. Vijay Ghormade: Public International Law

CUSTOM AS A SOURCE OF INTERNATIONAL LAW

(A) Meaning and Definition

(A) MEANING & DEFINITION

Custom and Usage Distinguished

Prof. Vijay Ghormade: Public International Law

When Usage Becomes a Custom?

(C) ESSENTIAL ELEMENTS OF INTERNATIONAL CUSTOMARY LAW