USE OF FORCE

In IHL, what happens in armed attack is covered – jus ad bellum, UOF is derived from jus ad bellum.
‘aggression’ as defined by the General Assembly’s Resolution on the Definition of Aggression is limited to
acts of armed force. ‘force’ means military violence and does not include other types of injurious conduct.
Steps- First, forcible measures may be taken or authorised by the Security Council, acting under Chapter VII
of the Charter. Second, force may be used in the exercise of the right of individual or collective self-defence,
as recognised in Article 51 of the Charter. A further possible exception that has been suggested, chiefly it
seems by UK Governments, is the use of force to avert an overwhelming humanitarian catastrophe. Force
used at the request or with the consent, duly given, of the government of the territorial State does not give
rise to an issue under the jus ad bellum. The use of force in retaliation (punishment, revenge or reprisals) is
illegal.
Art. 2(4), the Charter: All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
A General prohibition of the unilateral UOF. the states using violence have acknowledged that international
law raises a presumption that force is unlawful and have never claimed that all uses of force are lawful. Will
a particular use of force, whatever its justification otherwise, enhance or undermine world order? When this
requirement is met, attention may be directed to the fundamental principle of political legitimacy in
contemporary international politics. The basic policy of contemporary international law has been to maintain
the political independence of territorial communities so that they can continue to be able to express their
ongoing desire for political organization in a form appropriate to them. Each application of Article 2(4) must
enhance opportunities for ongoing self-determination. Though all interventions are lamentable, the fact is
that some may serve, in terms of aggregate consequences, to increase the probability of the free choice of
peoples about their government and political structure. Others have the manifest objective and consequence
of doing exactly the opposite.
Permissive - sees a total ban on the use of force as an emasculation of a state’s ability to protect itself
against the illegal conduct of other states and groups of individuals (terrorists, insurgents etc). and
restrictive approach- argues that the maintenance of international peace and security is the primary aim of
international law and that the use of force can be permitted only in the most exceptional circumstances. In
their view, the harm caused to the fabric of international society, both materially and psychologically, by an
outbreak of violence nearly always outweighs the ‘evil’ it was intended to counter. Moreover, they see
permissive rules as favouring powerful states and as being ‘a signpost for abuse.
consensus among the international community, as evidenced by consideration of instances of the use of
force, is that Art. 2(4) is not to be interpreted in the way claimed by protagonists of the permissive view
Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of the Security Council under the
present Charter to take at any time such action as it deems necessary in order to maintain or restore
international peace and security.
Self defence can only be used in armed attack acc to 51, the scope of the armed attack should be constrained
to military action either anticipatory or non anticipatory.
conditions of The Caroline Case are satisfied, the customary right of self-defence permits the use of force in
any of the following circumstances:
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(a) in response to and directed against an ongoing armed attack against state territory
(b) in anticipation of an armed attack or threat to the state’s security, so that a state may strike fi rst, with
force, to neutralise an immediate but potential threat to its security
(c) in response to an attack (threatened or actual) against state interests, such as territory, nationals, property
and rights guaranteed under international law. If any of these attributes of the state are threatened, then the
state may use force to protect them
(d) where the ‘attack’ does not itself involve measures of armed force, such as economic aggression and
propaganda. All that is required is that there is an instant and overwhelming necessity for forceful action.
restrictive -it is argued that this wide right of self-defence is no longer available. only right of self-defence
now available is that found in Art. 51. this would seem to preclude the right to use force in self-defence in
anticipation of an attack, or when the threat is not an ‘armed attack’, or when the violence is directed at state
interests rather than state territory. Palestinian Wall Advisory Opinion: it is available only when the armed
attack emanates from another state, as opposed to groups of insurgents operating from other states but not
under the control of the ‘host’ state. However, In fact, Art. 51 itself, in its own terms, does not say that an
armed attack must be made by another state before the right to self-defence can arise. It talks only of an
armed attack against a state.
question whether the right of self-defence is at all available in response to attacks by non-State actors, such
as transnational terrorist groups- has not been decisively rejected by the international community. the
Security Council adopted resolutions 1368 (2001) and 1373 (2001) reaffirming ‘the inherent right of
individual and collective self-defence as recognized by the Charter of the United Nations’. And State
practice, including the practice of the members of the North Atlantic Treaty Organization, supports such a
right. Chatham House study, which developed a set of Principles on the Use of Force in Self-Defence,
concluded that necessary and proportionate action could be taken where the territorial State is itself unable
or unwilling to take the necessary action.
The question whether a right of anticipatory self-defence has survived the UN Charter- During the Cold
War, one side seemed to take the position that action in self-defence was only lawful if an armed attack had
actually been launched. The United States, the United Kingdom and others maintained what might be
termed the ‘Caroline approach’, that is, that force may be used in self-defence in the face of an imminent
attack. the US Secretary of State indicated that Great Britain had to show ‘a necessity of self-defence,
instant, overwhelming, leaving no choice of means and no moment for deliberation’. Further, it had to be
established that, after entering the USA, the armed forces ‘did nothing unreasonable or excessive; since the
act justified by the necessity of self-defence must be limited by that necessity and kept clearly within it. This
statement effectively defines the use of force in self-defence as lawful under customary law if it is made in
response to an immediate and pressing threat, which could not be avoided by alternative measures and if the
force used to remove that threat was proportional to the danger posed. So, if the crisis can be avoided by
diplomatic representations, or if the ‘danger’ is so remote as to be nothing more than a feeling of suspicion,
self-defence is not justified. Nicaragua v USA, the issue of the legitimacy of anticipatory self-defence was
expressly reserved by the Court and while the majority tended to favour the restrictive view, Judges
Jennings and Schwebel clearly felt that the Charter had not removed the customary right to take pre-emptive
action.
What constitutes an imminent attack in the context of transnational terrorist groups and weapons of mass
destruction? The Caroline language is familiar: ‘a necessity of self-defence, instant, overwhelming, leaving
no choice of means, and no moment for deliberation.’
Lord Goldsmith explicitly distanced the British Government from an American doctrine of preventive
action, as set out in the 2002 National Security Strategy: “It is the Government’s view that international law
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permits the use of force in self-defence against an imminent attack but does not authorise the use of force to
mount a pre-emptive attack against a threat that is more remote”
The Chatham House Principles have something to say on the matter. Principle D says that ‘the criterion of
imminence must be interpreted so as to take into account current kinds of threat’ and that: “Force may be
used only when any further delay would result in an inability by the threatened State effectively to defend
against or avert the attack against it. In assessing the imminence of the attack, reference may be made to the
gravity of the attack [e.g. WMD], the capability of the attacker [e.g. possession of WMD], and the nature of
the threat, for example if the attack is likely to come without warning.”
A key element is whether ‘it is believed that any further delay in countering the intended attack will result in
the inability of the defending State effectively to defend itself against the attack. In this sense necessity will
determine imminence.’
The Leiden Policy Recommendations set the matter is a wider context. They “recognize that the use of force
is a measure of last resort to be employed only where absolutely necessary” and that “States and the Security
Council should give priority, wherever possible, to law enforcement measures.” They emphasise the need
for as much transparency as possible. They give particular emphasis to the role of the Security Council. On
the requirement of imminence in the context of terrorist attacks, they say: “Whether an attack may be
regarded as imminent falls to be assessed by reference to the immediacy of the attack, its nature and gravity.
There must be a reasonable and objective basis for concluding that at an attack will be launched, while
bearing in mind that terrorists typically rely on the unpredictability of attacks in order to spread terror among
civilians. Armed force may only be used when it is anticipated that delay would result in an inability by the
threatened state effectively to avert the attack.”
‘humanitarian intervention’ refers to forceful intervention by a third State or States to save people from their
own Government’s action or inaction.
On 29 August 2013, following the use of chemical weapons in Syria, the British Prime Minister’s Office
issued a statement of the Government’s legal position, which included the following: “If action in the
Security Council is blocked, the UK would still be permitted under international law to take exceptional
measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring
and disrupting the further use of chemical weapons by the Syrian regime.
Such a legal basis is available, under the doctrine of humanitarian intervention, provided three conditions are
met:
(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme
humanitarian distress on a large scale, requiring immediate and urgent relief;
(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be
saved; and
(iii)the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need
and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end
and for no other purpose).”
‘humanitarian intervention’ runs directly counter to the whole purpose of Art. 2(4). it is nearly always
necessary to remove the offending government, or at least seriously compromise its freedom of action, in
order to stop the violations of human rights. Such a result would surely be against the ‘political
independence’ of the ‘target’ state and it is no answer that the purposes so achieved are themselves an aim of
the UN Charter.

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The remit of the Security Council- membership of the United Nations as a whole, confirmed that
enforcement action to protect populations from genocide, war crimes, ethnic cleansing and crimes against
humanity is within
Can an ‘armed attack’ occur through a series of events rather than a major episode? So, does an armed attack
occur if the state is subject to repeated, relatively small scale incidents over a period of time, such as rocket
launches, isolated attacks, small armed incursions? This was the argument advanced by the United States in
the Oil Platforms Case when asserting that it had attacked and destroyed Iranian oil installations in self-
defence because of a pattern of small scale attacks against its vessels and personnel. The ICJ found that the
United States could not prove that these incidents were attributable to Iran, so it did not consider whether
self-defence was justified on an ‘accumulation of events’ approach to an armed attack. On the other hand, in
that case the ICJ avoided deciding that such events could not, in principle, trigger the right of self-defence,
and some see the judgment as offering tacit support for the United States’ view of the law.
the armed attack be against state territory, or is an attack against state interests, such as economic assets or
nationals abroad sufficient? Again, a number of states argue that aggression can take many forms, not only
the classic attack against territory, especially in the modern age.

Under Art. 51, states are obliged to report an exercise of self-defence to the Security Council, as did the
United States when taking the action that led to the Oil Platforms Case. Clearly, the point is both to alert the
Council, and to give it an opportunity to take collective action. Nevertheless, it is not clear what the
consequences of a failure to report are. In both the Congo and Ethiopia cases, there was a failure to report
and this was noted in the judgments, but given that the claims of self-defence were not made out on the
facts, there is no further discussion. It is conceivable that a failure to report might be regarded as rendering
an otherwise lawful self-defence unlawful, although that does seem an unlikely conclusion.
Collective self defence
Basis of NATO. Nicaragua case, the majority of the judges took the view that for collective self-defence,
just one must be attacked and all states take actions, although they also suggested that the attacked state
must ‘request’ assistance before action by others in its aid can be lawful- unrealistic expectation. , collective
self-defence is not the joint exercise of individual rights, but is collective action in response to an actual
armed attack against one state, with the possible additional criterion that the victim should formally request
assistance through its recognised representatives. Judge Jennings in his Dissenting Opinion in Nicaragua v
USA criticised this approach, pointing out that ‘collective’ self-defence was not a concept found in
customary law. In his view, ‘collective’ self-defence was simply the joint exercise of individual rights – in
other words, all states joining in the defensive action must be able to claim self-defence in their own right.
Invitation and civil wars
a state may give permission for the use of force on its territory for any lawful purpose, as where a state seeks
to secure the safety of its nationals. These are not violations of international law because they occur with the
consent of the territorial sovereign, provided of course that the purpose is not unlawful in itself. Democratic
Republic of the Congo v Uganda the Court notes that an intervention that is lawful through consent will
become unlawful if that consent is withdrawn.
under international law, civil war is perfectly lawful and it is extremely unlikely that third-party military
intervention can be justified by, say, a desire to assist the ‘democratic’ faction. Simply put, in a civil war
there is no authority competent under international law to invite assistance from other states, although there
is a possible exception in respect of assistance given to a group fighting for self-determination.
Reprisals
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Naulilaa Case, a ‘reprisal is an act of self-help by the injured state responding to an act contrary to
international law by the offending state’. The legality of the reprisal was said to depend on a prior illegal act
being committed against the state now using force and, under pre-Charter law, the use of armed force was
permitted only if it was a proportionate response to the prior illegality. Armed reprisals were a method of
gaining satisfaction and redress in a system that could not otherwise provide it. It is generally accepted that
Art. 2(4) has outlawed armed reprisals, especially since the Charter was intended to provide more effective
machinery for the peaceful settlement of disputes.
armed reprisals are illegal under international law, even where the prior illegality itself involved the use of
force and even where the right of self-defence may not arise.
Protection of nationals at home and abroad. Terrorism and the use of force
customary practice appears to have identified four conditions. First, the ‘host’ state must be unable or
unwilling to protect the nationals. Secondly, the nationals must be in serious and immediate danger of life-
threatening harm. Thirdly, force must be the weapon of last resort. Fourthly, the acting state may use only
such force as is reasonably necessary and must vacate the territory of the ‘host’ state as soon as is
practicable.
when Baghdad was attacked in 1993, UK offered unqualified support for the US legal position, arguing that
protection of nationals came within self-defence when ‘(a) there is good evidence that the target attacked
would otherwise continue to be used by the other State in support of terrorist attacks against one’s nationals;
(b) there is, effectively, no other way to forestall imminent further attacks on one’s nationals; (c) the force
employed is proportionate to the threat’. It will be appreciated that this justification is valid only if the right
of self-defence is itself taken to be the wider right unconstrained by the language of Art. 51.
Self-determination and national liberation movement
claimed as legitimate on the ground that it furthers the principles of the Charter. Art. 2(4) prohibits the use
of force ‘in any manner inconsistent with the purposes of the United Nations’ and this may have been
designed specifi cally to protect peoples who have not yet achieved statehood. if the international
community is seeking to use force to support self-determination, this should be done only after authorisation
by a competent international organisation as a ‘collective action’: for example, the Security Council action
in support of the people of East Timor.
The better view is, then, that third states may assist politically and economically in the fi ght for self-
determination, but not militarily.
UNSC
Under Art. 39 of the Charter, if the Security Council determines that there is any ‘threat to the peace, breach
of the peace, or act of aggression’ it may take such measures as are specified in Arts 41 (non military
sanctions; binding in nature) and 42. Although non-military sanctions may well be an effective remedy in
some cases, the Charter recognises that some acts of aggression etc. may be so serious as to warrant the
collective use of armed force. Under Art. 42, the Council may take such military action ‘as may be
necessary to maintain or restore international peace and security’
UNGA
if the Council could not discharge its primary responsibility because of the use of a veto by a permanent
member, the Assembly ‘shall consider the matter immediately with a view to making appropriate
recommendations to members for collective measures, including in the case of a breach of the peace or act
of aggression, the use of armed force when necessary, to restore international peace and security’.
Regional org
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The better view - apart from self-defence, regional organisations can undertake armed action only on the
express authorisation of the Security Council although regional peacekeeping operations with the consent of
the territorial sovereign (or warring factions) are lawful.

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 JURISDICTION
Legislative jurisdiction
This is the right of a State to pass laws that have a bearing on conduct. Some States take the view
domestically that they are entitled to pass legislation covering matters which take place throughout the
globe. However, enforcement of such a statute would be difficult in international law owing to the principle
of non-intervention. States are entitled to protest assertions of legislative jurisdiction which are unwarranted
under international law. However, other States do not always consider their rights to be heavily affected by
those claims until a specific case arises in which they are relied on.
Adjudicative jurisdiction
This is the extent to which domestic courts are able to pass judgment on matters brought before them. By
passing judgment over offences abroad it is possible that courts, hence States, are intervening in the
domestic jurisdiction of the State in which the offences occurred. The jurisdictional obligations on states to
bring their prescriptive and adjudicative authority to bear on questions of individual responsibility for
violations of international criminal law, for example, are obligations owed by states to each other, in respect
of individuals, not to individuals
Executive jurisdiction
is the right to effect legal process coercively, such as to arrest someone, or undertake searches and seizures.
In the vast majority of cases, this is done by domestic law enforcement agencies such as the police. The
Lotus case, which is generally accepted to reflect current international law on executive jurisdiction
accurately, stated that: The first and foremost restriction imposed by international law upon a State is that –
failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State
outside its territory ...
an arrest is illegal does not necessarily mean that a court cannot proceed against a person brought before
them unlawfully. In international criminal law, many states have accepted the related idea that a failure to
submit those suspected of international crimes to prosecution will lead to forfeiture of national jurisdiction,
to be replaced by obligations to transfer suspects to the International Criminal Court, under the principle of
complementarity. states may not under international law exercise their jurisdiction (territorially or
otherwise) in relation to parties who have a recognised basis of international immunity
Treaties and jurisdiction
States are entitled to pass jurisdiction to one another. The treaty-based transnational crimes are usually
examples of where States have agreed between themselves that they may exercise jurisdiction on each
other’s behalf. However, if a State were to assert a right to prosecute someone on the basis of a treaty which
is not referable to a concession of one of the accepted forms of jurisdiction by a State party to the
convention, it would violate international law,13 unless the convention can be regarded as reflective of
custom.
The territoriality principle
States have the right to exercise jurisdiction over all events on their territory. This includes ships and
aeroplanes which are registered in those countries. A State has jurisdiction over a crime when the crime
originates abroad or is completed elsewhere, so long as at least one of the elements of the offence occurs in
its territory. If it is the former, it is said to be ‘objective’ territorial jurisdiction, if it is the latter, then it is
‘subjective’ territoriality.
The nationality principle
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States are entitled under international law to legislate with respect to the conduct of their nationals abroad.
Many States adopt this head of jurisdiction quite broadly. Article 12(2) of the Bosnia/Herzegovina Criminal
Code, for example, states that ‘[t]he criminal legislation of Bosnia and Herzegovina shall be applied to a
citizen of Bosnia and Herzegovina who, outside the territory of Bosnia and Herzegovina, perpetrates a
criminal offence ...
he principle, nonetheless, applies beyond the armed forces, and also covers civilians. Equally, the extent to
which other States are required to accept that nationality (and thus any jurisdiction based on it) is probably
governed by the test enunciated in the Nottebohm case.This is that the person asserting nationality (or, as in
the case of jurisdiction, having nationality asserted against them) must have a ‘genuine connection’ with the
State of which he or she is an alleged national. For nationality jurisdiction, it is often required that the person
over whom that jurisdiction is being asserted was a national at the time of the offence rather than after.
Otherwise, it has been claimed, a violation of the nullum crimen sine lege principle could occur.
Nevertheless, some States provide for jurisdiction in the situation where suspects later acquire their
nationality.
Passive personality jurisdiction
jurisdiction exercised by a State over crimes committed against its nationals whilst they are abroad
particularly in the case of terrorism. Lotus case took the view that customary international law does not
accept such a principle. There are fears that passive personality jurisdiction favours powerful States at the
expense of weaker States. States have the right to prosecute war crimes committed against their nationals-
Washio Awochi trial, in which a Japanese national was prosecuted by a Netherlands Court Martial for
forcing Dutch women into prostitution in a club in Batavia.
The protective principle
A State is entitled to assert protective jurisdiction over extraterritorial activities that threaten State security,
such as the selling of a State’s secrets, spying or the counterfeiting of its currency or official seal.
Universal jurisdiction
refers to jurisdiction established over a crime without reference to the place of perpetration, the nationality
of the suspect or the victim or any other recognized linking point between the crime and the prosecuting
State. It is a principle of jurisdiction limited to specific crimes. States are entitled, but not obliged, to assert
universal jurisdiction over war crimes, crimes against humanity, genocide and torture. There are no
examples of universal jurisdiction prosecutions for aggression. Jurisdiction tends to inhere in States for the
purpose of protecting their own interests. The purpose of universal jurisdiction, on the other hand, is linked
to the idea that international crimes affect the international legal order as a whole.42 Owing to the
recognition that such offences affect all States and peoples, international law grants all States the right to
prosecute international crimes.
Pure universal jurisdiction arises when a State seeks to assert jurisdiction over an international crime
(usually by investigating it and/or requesting extradition of the suspect) even when the suspect is not present
in the territory of the investigating State. Conditional universal jurisdiction is universal jurisdiction exercised
when the suspect is already in the State asserting jurisdiction
Article 49 of Geneva Convention I (to which the other three conventions have similar provisions) reads:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed,
or to have ordered to be committed, such grave breaches and shall bring such persons, regardless of their
nationality, before its own courts [or hand them over to another High Contracting Party.
The Pinochet litigation throughout Europe, for example, was thought by careful commentators to represent
‘the globalization of human rights law through the affirmation that the consequences of, and jurisdiction
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over, gross violations are not limited to the State in which they (mostly) occur, or of that of the nationality of
the majority of the victims’.
Denial of justice to foreign nationals
Where a claim is brought by a foreign national complaining about their treatment by the host state itself, any
failure of those local remedial processes may constitute an additional international wrong, compounding the
initial wrongful treatment by the state. Where a foreign national suffers harm due to the wrongful conduct of
a private party, that wrong would not ordinarily constitute a breach of the state’s international obligations
because it would not be attributable to the state, but the failure to remedy it through the actions or inactions
of domestic courts could itself be a breach of the international minimal standard. jurisdictional duties which
states owe to each other in respect of individuals, not obligations owed directly to individuals.
Universal jurisdiction’s practical problems
the existence of jurisdiction per se does not give rise to any obligations on behalf of the territorial or
nationality State to assist in any investigation, provide evidence or extradite suspects. The matter of
cooperation falls to treaty obligations or comity.
Translation difficulties, as well as difficulties of appraising the credibility of witnesses testifying through
interpretation and from different cultural backgrounds, make the appraisal of witness evidence very difficult.
There is also the possible problem of ‘forum shopping’, in which victims or NGOs may seek to initiate
prosecutions in multiple fora, to maximize the possibility of a conviction. This can raise important issue of
the rights of defendants, who could be prosecuted (and have to defend themselves) repeatedly in relation to
the same facts, something which, if done in one State, would violate the ne bis in idem principle.
international crimes are not simply the concern of one State alone. Crimes against humanity, genocide and
war crimes all violate erga omnes obligations; therefore all States have an interest in the response to such
offences. The practical ability of more powerful nations both to assert jurisdiction beyond their borders, and
the ability of such States to pressure other countries into leaving their nationals alone has led to claims that
universal jurisdiction can be selective in its application.
Some, if not all, of these problems could be mitigated by the adoption of an international agreement on the
exercise of universal jurisdiction, although there are no official proposals for such a treaty at present.

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 INT. CRIM. LAW
crimes against international law are committed by men, not abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced ... individuals have
international duties which transcend the national obligations of obedience imposed by the individual state.
GENOCIDE
special intent to destroy groups, even if colloquially the word is used for any large-scale killings.
attained the status of a ‘ius cogens’ norms and an erga omnes obligation on States (thus owed to the
international community as a whole).
definition of genocide is contained in Article II of the Genocide Convention, It is ‘any of the following acts
committed with the intent to destroy (The destruction specified here is physical or biological, although the
means of causing the destruction of the group may be by acts short of causing the death of individuals.89
Other forms of destruction, for example, the social assimilation of a group into another, or attacks on
cultural characteristics which give a group its own identity, do not constitute genocide if they are not related
to physical or biological destruction), in whole or in part (Krsˇtic- in determining what a ‘substantial’ part
was, the prominence of the targeted individuals within the group as well as the number targeted could also
be relevant; hence, both qualitative and quantitative criteria should be considered. If a specific part of the
group is emblematic of the overall group, or is essential to its survival, that may support a finding that the
part qualifies as substantial.), a national, ethnical, racial or religious group, as such (the discriminatory
nature of genocide seems to require a motive: the victims are singled out not by reason of their individual
identity but because of their membership of a national, ethnic, racial or religious group. having a
discriminatory purpose for the crime is intrinsic to the special intent):
(a) killing members of the group (The act must be intentional but not necessarily premeditated.) ;
(b) causing serious bodily or mental harm to members of the group (Eichmann case- serious bodily and
mental harm could be caused ‘by the enslavement, starvation, deportation and persecution of people ... and
by their detention in ghettos, transit camps and concentration camps in conditions which were designed to
cause their degradation, deprivation of their rights as human beings and to suppress them and cause them
inhumane suffering and torture’. The ICTR in the Akayesu case broke new ground in deciding that acts of
sexual violence and rape can constitute genocide; “mental harm” US entered an ‘understanding’ to the
Convention on ratifying, which stated that the term ‘means permanent impairment of mental faculties
through drugs, torture or similar techniques’. );
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part; (methods of destruction whereby the perpetrator does not immediately kill the members of
the group, but which seek to bring about their physical destruction in the end. The ICC Elements of Crimes
interpret the term ‘conditions of life’ as including but ‘not necessarily restricted to, deliberate deprivation of
resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.’
‘ethnic cleansing’, has been considered under the head of deliberate infliction of conditions of life:
Karadzˇic´ and Mladic. Eichmann: the objective of a forced migration is ‘only’ to remove a group or part of
it from a territory, it differs from that of genocide)
(d) imposing measures intended to prevent births within the group; (both genocidal intent, and the intent to
prevent births within the group must also be proved.)
(e) forcibly transferring children of the group to another group. (ICC Elements of Crimes, defining children
as being those below 18 and noting that ‘[t]he term ‘‘forcibly’’ is not restricted to physical force, but may
include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological

10
oppression or abuse of power, against such person or persons or another person, or by taking advantage of a
coercive environment’)
The threshold for a crime against humanity is its connection to a widespread or systematic attack directed
against a civilian population, and for a war crime, its commission during an armed conflict. the gravity of
genocide is primarily marked not by an objective circumstantial element but by the subjective mens rea, the
intent to destroy a national, ethnic, racial or religious group as such.
Jelisic´, an ICTY Trial Chamber stated that killings committed by a single perpetrator are enough ‘to
establish the material element of the crime of genocide and it is a priori possible to conceive that the accused
harboured the plan to exterminate an entire group without this intent having been supported by any
organisation in which other individuals participated. did not discount the possibility of a lone individual
seeking to destroy a group as such’
ICTY prosecution has warned: in the interests of international justice, genocide should not be diluted or
belittled by too broad an interpretation. Indeed, it should be reserved only for acts of exceptional gravity and
magnitude which shock the conscience of humankind and which, therefore, justify the appellation of
genocide as the ‘ultimate crime.’
2 approaches- ‘contextual element’ to the actus reus, requiring that the conduct for which the defendant is on
trial takes place in the context of ‘a manifest pattern of similar conduct’ or is of itself able to destroy the
group or part of it: Krsˇtic. The adjective ‘manifest’, included at the insistence of the US, means that the
pattern must be a clear one and not one of a few isolated crimes occurring over a period of years. The
alternative approach, in the context of the special intent requirement, is that there must be an organized and
widespread plan to exterminate a group and the perpetrator must act with knowledge that the commission of
the individual act would, or would be likely to, further the implementation of the plan.
Wide reading of protected groups
It has also been suggested that other groups come within the scope of genocide by virtue of customary
international law or that the existing terms should be expansively interpreted so as to include other groups
within the definition - ICTR Trial Chamber sitting in the Akayesu case. On the basis of a (mis)reading of the
travaux pre´paratoires the Chamber determined that the drafters of the Convention intended to protect any
stable and permanent group, rather than simply the groups specifically mentioned.
There are national jurisdictions that have adopted wider formulations of the protected groups in their
domestic law.
Problems of overlap- Akayesu sought to give each term its own definition but in so doing ran into
difficulties in assessing whether the Tutsi were a protected group. Having defined an ethnic group as ‘a
group whose members share a common language or culture’, thus that the Tutsi were distinguished from the
Hutu. It was only by virtue of its determination that any ‘stable and permanent’ group was covered by the
Convention, and therefore by the ICTR Statute, that the Chamber was able to find that the Tutsi were a
protected group.
The alternative approach- Krsˇtic´ Trial Chamber, is to recognize that the list is exhaustive but to accept that
the four groups were not given distinct and different meanings in the Convention: European instruments on
human rights use the term ‘national minorities’, while universal instruments more commonly make reference
to ‘ethnic, religious or linguistic minorities’; the two expressions appear to embrace the same goals. The
preparatory work of the Convention shows that setting out such a list was designed more to describe a single
phenomenon- ‘national minorities’ To attempt to differentiate each of the named groups on the basis of
scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.
Identification of a group
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Bagilishema case: if a victim was perceived by a perpetrator as belonging to a protected group, the victim
should be considered by the Chamber as a member of the protected group, for the purposes of genocide.
Thus, whether a group is a protected one should be ‘assessed on a case-by-case basis by reference to the
objective particulars of a given social or historical context, and by the subjective perceptions of the
perpetrators’.
where a person has a mixed identity, if they are targeted on the basis of membership of the protected group,
the person so targeting them may be guilty of genocide- Ndindabahizi case.
Intent
General Krsˇtic´ the Appeals Chamber decided, did not have a genocidal intent: His own particular intent
was directed to a forcible displacement. Some other members of the VRS Main Staff harboured the same
intent to carry out forcible displacement, but viewed this displacement as a step in the accomplishment of
their genocidal objective. ... [A]ll that the evidence can establish is that Krsˇtic´ was aware of the intent to
commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did
nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This
knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst
crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent.
Convictions for genocide can be entered only where that intent has been unequivocally established.
the Darfur Commission decided that the policy of attacking, killing and forcibly displacing members of
some tribes in Darfur did not show the special intent of genocide, but rather the intent ‘to drive the victims
from their homes, primarily for purposes of counter-insurgency warfare’.116 The material elements of
genocide – the killing and other prohibited acts, and the existence of a protected group – were present, but
not the special intent and the Commission therefore found that the Government of Sudan had not pursued a
policy of genocide.
In Krsˇtic´, however, the Appeals Chamber, while noting that the intent to destroy must be discernible in the
joint participation of the crime itself, held that individual participators must each have the necessary intent.
This insistence on the special intent for each individual perpetrator remains the standard required for the
crime of genocide. reserve genocide convictions only for those who have the highest degree of criminal
intent.
CRIME AGAINST HUMANITY
defined in Nuremberg Charter Article 6(c) as: murder (the mental element is satisfied if the perpetrator
intends to kill, or intends to inflict grievous bodily harm likely to cause death and is reckless as to whether
death ensues), extermination (n involves killing by the accused within a context of mass killing),
enslavement (‘slave trade’ refers to the capture, acquisition, sale, exchange, transport or disposal of persons
with intent to reduce them to slavery or to sell or exchange them.103 The ICC Elements of Crimes also list,
as examples, such transactions as ‘purchasing, selling, lending or bartering’. Second, the ICC Statute
explicitly mentions the example of trafficking in persons, in particular, women and children (Article 7(2)(c);
forced labor; Kunarac decision indicated that relevant factors include ‘control of someone’s movement,
control of physical environment, psychological control, measures taken to prevent or deter escape, force,
threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control
of sexuality and forced labour)., deportation (forced displacement of persons by expulsion or other coercive
acts from the area in which they are lawfully present, without grounds permitted under international law.
This does not require actual physical force, but may also include the threat of force or coercion,
psychological oppression, or other means. ‘Deportation’ is generally regarded as referring to displacement
across a border, whereas ‘forcible transfer’ is generally regarded as referring to internal displacement. if a
group flees of its own genuine volition, for example to escape a conflict zone, that would not be forced
displacement. On the other hand, if a group flees to escape deliberate violence and persecution, they would
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not be exercising a genuine choice.) and other inhumane acts committed against any civilian population,
before or during the war, or persecutions on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of
the country where perpetrated.
‘any’ civilian population meant that even crimes committed against a country’s own population were
included. the population need only be ‘predominantly civilian in nature’; the ‘presence of certain non-
civilians in their midst does not change the character of the population’. Second, the term ‘civilian’ has been
interpreted broadly to include all those no longer taking part in hostilities at the time the crimes were
committed. This includes former combatants who had decommissioned, as well as combatants placed hors
de combat by being wounded or detained. ‘civilian’ reference serves a rational purpose, which is simply to
exclude military actions against legitimate military objectives in accordance with international humanitarian
law. Military personnel who are victims of crimes outside the context of battle, such as persecution or
political denunciation, would be covered. Most forms of crime against humanity other than killing,
extermination or wounding (which could be an inhumane act), cannot be committed unless the victim is first
overcome, and hence reduced to protected person status, at which point they would no longer be military
objectives and would fall within the broad definition of civilian. Killing or wounding of combatants, on the
other hand, is lawful
crimes against humanity could occur only with some ‘nexus’ to armed conflict.
ICTY Statute (Article 5) defined the contextual threshold as ‘when committed in armed conflict, whether
international or internal in character, and directed against any civilian population’. threshold as requiring a
‘widespread or systematic attack’. The ICTR Statute (Article 3) defined the context as ‘when committed as
part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial
or religious grounds’. Thus, the definitions are similar, except that the ICTY Statute requires armed conflict
and the ICTR Statute requires discriminatory grounds.
The ICC Statute contains the same list of acts but adds forced transfer of population, sexual slavery,
enforced prostitution (The ICC Elements of Crimes refer to (1) causing one or more persons to engage in
one more acts of a sexual nature, (2) by force or by threat of force (or under the coercive circumstances as
noted above in the discussion of rape). In addition, pursuant to a US proposal, it is required that (3) ‘the
perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for in
or in connection with the acts of a sexual nature’.), forced pregnancy ((1) unlawful confinement (2) of a
woman forcibly made pregnant (3) with the intent of affecting the ethnic composition of a population or
carrying out other grave violations of international law.167 The reference to grave violations of international
law includes, for example, biological experiments.), enforced sterilization sexual violence (ICC Elements of
Crimes - (1) the perpetrator deprived one or more persons of biological reproductive capacity and (2) that
the conduct was neither justified by the medical or hospital treatment of the persons concerned nor carried
out with their genuine consent. This definition is not restricted to medical operations, but could also include
an intentional use of chemicals for this effect. The concept of ‘genuine consent’ excludes consent obtained
by deception. Enforced sterilization can also satisfy the conduct requirements of genocide and can amount to
genocide where genocidal intent is present.), enforced disappearance (refers to the ‘arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence of, a State or political
organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the
fate or whereabouts of those persons, with the intention of removing them from the protection of law for
a prolonged period of time’. Enforced disappearance typically involves many actors. Therefore, the ICC
Elements recognize that the crime may be committed (a) by arresting, detaining or abducting a person, with
knowledge that a refusal to acknowledge or give information would be likely to follow in the ordinary
course of events, or (b) by refusing to acknowledge the deprivation of freedom or to provide information on
the fate or whereabouts, with knowledge that such deprivation may well have occurred. The ICC Statute

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expanded this to refer as well to ‘political organizations’, consistent with the fundamental proposition that
crimes against humanity may be committed by non-State actors.) and the crime of apartheid (The ICC
Statute, Article 7(2)(h), defines it as ‘inhumane acts of a character similar to those referred to in paragraph 1,
committed in the context of an institutionalized racial regime of systematic oppression and domination by
one racial group over any other racial group and committed with the intention of maintaining that regime’. ).
The ICC Statute rejects both the armed conflict requirement and the requirement of discriminatory grounds.
The contextual threshold in Article 7 of the ICC Statute is ‘when committed as part of a widespread or
systematic attack directed against any civilian population’.
The term ‘systematic’ has also been defined in various ways. In Akayesu it was defined as (1) thoroughly
organized, (2) following a regular pattern, (3) on the basis of a common policy and (4) involving substantial
public or private resources. In Blasˇkic´, it was defined as requiring (1) a plan or objective, (2) large-scale or
continuous commission of linked crimes, (3) significant resources, and (4) implication of highlevel
authorities.
The ICC Statute and Tribunal jurisprudence indicate there must at least be multiple acts or multiple victims
in order to warrant the label ‘attack directed against a civilian population’. These acts may be all of the same
type or of different types, for example murder, rape and deportation. This requirement of ‘multiple acts’
does not mean that ‘widespread’ is a requirement in all cases. Both terms measure scale, but ‘multiple’ is a
low threshold and ‘widespread’ is a high threshold.
The random acts of individuals are not sufficient; some thread of connection between acts is needed so that
they can accurately be described collectively as an attack directed against a civilian population. there must
be an underlying governmental or organizational policy that directs, instigates or encourages the crimes.
requirement is satisfied by ‘explicit or implicit approval or endorsement’ or that the conduct is ‘clearly
encouraged’ or ‘clearly fits within’ a general policy. Thus, inaction designed to encourage the crimes would
also suffice. Conversely, for those jurisdictions that have rejected the term ‘policy’, it remains essential not
to lose sight of the principle that unconnected random acts cannot constitute an ‘attack’
A single act by the accused may constitute a crime against humanity if it forms part of the attack. The act of
the accused may also in itself constitute the attack, if it is of great magnitude, for example, the use of a
biological weapon against a civilian population.
Mental element
Tribunal cases indicate that awareness, wilful blindness, or knowingly taking the risk that one’s act is part of
an attack, will suffice. The perpetrator need not share in the purpose or goals of the overall attack. The
mental requirement relates to knowledge of the context, not motive.
listed in Allied Control Council Law No. 10:
Imprisonment- detention in prison-like conditions but other serious forms of confinement and detention. ICC
Statute added ‘or other severe deprivation of physical liberty’ to ensure that a narrow definition was not
applied, and that situations such as house arrest were included. privation of physical liberty. Imprisonment
must be arbitrary to constitute a crime against humanity. Tribunal jurisprudence refers to imprisonment
without due process of law. Even where the initial detention was justified, imprisonment will become
arbitrary if the legal basis ceases to apply and the person remains imprisoned (Art. 1 of the CAT).
the three categories suggested by the UN Working Group on Arbitrary Detention seem to capture the forms
of this crime admirably: (1) absence of any legal basis for the deprivation of liberty, (2) deprivation of
liberty resulting from exercise of specified rights and freedoms (that is to say political prisoners), and (3)
‘when the total or partial non-observance of the international human rights norms relating to the right to a
fair trial ... is of such gravity as to give the deprivation of imprisonment an arbitrary character’

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Torture: Convention Against Torture (CAT) 1984, the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person. The CAT definition requires that the pain or suffering be
‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity. torture by rebel groups, paramilitaries and others is included.
The second is the ‘purpose’ element. The CAT definition requires a specific purpose, such as ‘obtaining
from him or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind’. The purpose need not be the sole or predominant purpose, but
must be part of the motivation.
severity: the special stigma of torture requires infliction of ‘very serious and cruel suffering’
CAT and the ICC Statute, expressly exclude ‘pain or suffering arising only from, inherent in or incidental to,
lawful sanctions’. ‘Lawful’ in this context would appear to mean lawful in accordance with national law,
provided however that the national law is not in violation of international law. Tribunal jurisprudence and
regional human rights bodies have recognized that rape can constitute a form of torture. Rape causes severe
pain and suffering, both physical and psychological. In Furundzˇija, the accused was convicted of torture for
acts during an interrogation, including sexual threats, rapes and forced nudity, inflicted on the victim for
purposes of intimidation, humiliation and extracting confession.
Rape
1. physical invasion of a sexual nature.
2. the presence of coercive circumstances,
3. the absence of consent: Kunarac- held that force or threat of force may be relevant, in providing clear
evidence of non-consent, but force is not an element per se of rape.
The ICC Elements of Crimes falls in between the two definitions: The perpetrator invaded the body of a
person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the
perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other
part of the body.
Persecution
Persecution involves the intentional and severe deprivation of fundamental rights, against an identifiable
group or collectivity on prohibited discriminatory grounds. In addition, the ICC Statute indicates that
persecution must be committed in connection with another crime or at least one inhumane act. Severe
deprivation of fundamental rights. The test developed in Tribunal jurisprudence requires (1) a gross or
blatant denial, (2) on discriminatory grounds, (3) of a fundamental right, laid down in international
customary or treaty law, (4) reaching the same level of gravity as other crimes against humanity.
The fundamental feature of persecution is that it be committed on discriminatory grounds with intent. The
ICTY and ICTR Statutes refer to persecution on political, racial or religious grounds. The ICC Statute
contains an updated and more inclusive list of prohibited grounds: political, racial, national, ethnic, cultural,
religious, or gender. In addition, the ICC list is cautiously open-ended in referring to ‘other grounds that are
universally recognized as impermissible under international law’.
The Blasˇkic´ decision affirmed that persecution includes ‘targeting property, so long as the victimized
persons were specially selected on grounds linked to their belonging to a particular community’.
Other inhumane acts

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The ICC Statute provides the necessary threshold by requiring that the inhumane acts (1) be of a similar
character to other prohibited acts and (2) that they cause great suffering or serious injury to body or to
mental or physical health. Tribunal jurisprudence provides the threshold by requiring ‘similar gravity and
seriousness’ to other prohibited acts. The accused must carry out the conduct intentionally. It is not required
that the accused considered his or her actions ‘inhumane’, it is sufficient that the accused was aware of the
factual circumstances that established the character of the act. The accused must intend to inflict serious
bodily or mental harm.

UNIVERSAL DECLARATION OF HUMAN RIGHTS, ARTICLE 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.
Dignity is a fundamental part of this Article. The concept of dignity is also is defending gay rights; in
reversing India’s constitutional ban, India’s Supreme Court specifically wrote that LGBTQ persons had been
denied “equal participation and dignity under the Constitution.
Article 2: (1) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status (“other status,” persons with disabilities assert the right to equal
treatment, embodied in the UN Convention on the Rights of Persons with Disabilities). (2) Furthermore, no
distinction shall be made on the basis of the political, jurisdictional or international status of the country or
territory to which a person belongs, whether it be independent, trust (Union nations), non-self-governing or
under any other limitation of sovereignty.
Article 3 Everyone has the right to life, liberty and security of person. United Nations General Assembly
adopted a Second Optional Protocol to the International Covenant on Civil and Political Rights “aiming at
the abolition of the death penalty. “The right to life is a right which should not be interpreted narrowly. It
concerns the entitlement of individuals to be free from acts and omissions that are intended or may be
expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.” Anti-abortion
campaigners decried the action, complaining that the Committee did not include the right to life of the
unborn
Art 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their
forms (OHCHR) defines contemporary slavery as including but not limited to “debt bondage, serfdom,
forced labour, child labour and child servitude, trafficking of persons and human organs, sexual slavery,
children in armed conflict, sale of children, forced marriage and the sale of wives, migrant work, the
exploitation of prostitution, and certain practices under apartheid and colonial regimes.
Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
International Covenant on Civil and Political Rights adds to Article 5’s definition the sentence, “In
particular, no one shall be subject without his free consent to medical and scientific experimentation.”
UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment includes
the limitation that “such pain and suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.” This seems to eliminate the
possibility that non-state actors could inflict torture, which is manifestly untrue. The 1998 Rome statute of
the International Criminal Court dropped this limitation, defining torture in Article 7, paragraph 2 (e) as “the
intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or

16
under the control of the accused; except that torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions.”
Article 6 Everyone has the right to recognition everywhere as a person before the law. International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
says, in Article 24, “Every migrant worker and every member of his or her family shall have the right to
recognition everywhere as a person before the law.” The Convention on the Rights of Persons with
Disabilities (2008), Article 12, reads, “States Parties reaffirm that persons with disabilities have the right to
recognition everywhere as persons before the law.
UN General Assembly adopted a “Declaration on the protection of all persons from forced disappearance.”
Its Article 1, paragraph 2, states, “Any act of enforced disappearance places the persons subjected thereto
outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a
violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before
the law, the right to liberty and security of the person and the right not to be subjected to torture and other
cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the
right to life.”
Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the
law. All are entitled to equal protection against any discrimination in violation of this Declaration and
against any incitement to such discrimination. increasing importance as Internet speech incites
discrimination. In 2003 the International Criminal Tribunal for Rwanda convicted Ferdinand Nahimana,
When sentencing Nahimana, Judge Navanethem Pillay told him, “You were fully aware of the power of
words, and you used the radio – the medium of communication with the widest public reach – to disseminate
hatred and violence….Without a firearm, machete or any physical weapon, you caused the death of
thousands of innocent civilians.”
Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating
the fundamental rights granted him by the constitution or by law. implicitly guarantees a right to habeas
corpus. Remedy includes reparations, including those able to put a victim back into the position she was in
before the crime was committed, the compensation for loss, or by intangible acknowledgement of the wrong
done.
Article 9 No one shall be subjected to arbitrary arrest, detention or exile. about individual human rights.
Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him. General
Comment 32 insists, “”Deviating from fundamental principles of fair trial, including the presumption of
innocence, is prohibited at all times.”
Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2)
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a
penal offence, under national or international law, at the time when it was committed (ex post facto law).
Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was
committed.
Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of
the law against such interference or attacks.
application of human rights in the way in which States operate in the digital age, and in the way in which
they regulate the activities of companies in the digital space.

17
Article 13 (1) Everyone has the right to freedom of movement and residence within the borders of each
State. (2) Everyone has the right to leave any country, including his own, and to return to his country.
the participation of two countries is required: to leave a country or seek asylum means entering another
country and to change a nationality means another nation must accept the applicant as a citizen.
Article 14 (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2)
This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or
from acts contrary to the purposes and principles of the United Nations.
intention was not to grant to a person fleeing persecution the right to enter any and every country but to
ensure for him the enjoyment of the right of asylum once that right had been granted him. United Nations
Convention relating to the Status of Refugees (and subsequently a 1967 Protocol) defines a refugee as a
person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former habitual residence as a result of such events, is
unable or, owing to such fear, is unwilling to return to it.”
Article 15 (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.
The 1954 Convention defined a stateless person as “a person who is not considered as a national by any
State under the operation of its law.” And to make sure that women had a nationality, recognizing that in
some States women lost or acquired their nationality “as a result of marriage, of its dissolution, or of the
change of nationality by the husband during marriage,” The Rohingya of Myanmar (Burma) are a case of
politically created statelessness: Although they were resident in Burma, the Burmese authorities considered
most Rohingya to be ‘resident foreigners,’ not citizens, and they were denied the right to register as citizens
of Myanmar with an ethnic designation of Rohingya.
Article 16 (1) Men and women of full age, without any limitation due to race, nationality or religion (Art
18), have the right to marry and to found a family. They are entitled to equal rights as to marriage, during
marriage, and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the
intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
Article 17 (1) Everyone has the right to own property alone as well as in association with others. (2) No one
shall be arbitrarily deprived of his property.
Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief in teaching, practice, worship and observance. t this
“article should grant freedom of conscience not only for the practice of religion, but also for anti-religious
propaganda.” The delegation from Saudi Arabia objected strenuously to the inclusion of a right to change
religious affiliation, and this Article, along with Article 16 which includes a person’s right to marry anyone
of any religion.
UN Human Rights Committee, the treaty body that oversees the Covenants, clarified the still ambiguous
language on nonbelievers by stating that the Covenant protects “theistic, non-theistic and atheistic beliefs, as
well as the right not to profess any religion or belief.” The Committee commented that if there is a state
religion or official ideology that encompasses a set of beliefs, it “shall not result in any impairment” or
discrimination against the “adherent to other religions or non-believers.” Further, the right to conscientious
objection and the right to refuse to perform military service because of religious beliefs is a right that “can
be derived from Article 18,”
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Minorities- The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
or Linguistic Minorities underscored the right of minorities “to profess and practice their own religion”
(Article 2) and declared “States shall protect the existence and the national or ethnic, cultural, religious and
linguistic identity of minorities within their respective territories and shall encourage conditions for the
promotion of that identity” (Article 1)
Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to see, receive and impart information and ideas through any media and
regardless of frontiers. the delegates did not condemn hate speech per se but rather said that all persons have
the right to be protected against such speech. International Covenant on Civil and Political Rights included
in its Article 19 a third element stating that the exercise of the right to freedom of expression “carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary: 1. For respect of the rights or reputations of others; 2. For the
protection of national security or of public order or of public health or morals.” It went on, in Article 20, to
extend this prohibition: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be
prohibited by law.”
Article 20 (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be
compelled to belong to an association. all organizations “of a fascist or anti-democratic nature” should be
exempted from the right to assemble.
Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization,
through national effort and international co-operation and in accordance with the organization and
resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free
development of his personality
Article 23 (1) Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment. 2) Everyone, without any discrimination, has
the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable
remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented,
if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions
for the protection of his interests. including the right to work for women, young persons and older persons,
persons with disabilities and migrant workers and the protection of children “from all forms of work that are
likely to interfere with their development or physical or mental health.” The application of Article 23 is
understood to involve private enterprises, national and multinational. International Labour Organisation that
has done much in the fi eld of forced labour, equal pay and the right to work.
Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and
periodic holidays with pay. What did it mean for peasants, farm workers, migrant laborers, domestic
workers and others outside the “commerce and offices” covered by the ILO conventions?
Article 25 (1) Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family (women’s rights advocates using Article 25 explain that heads of families can be
male or female.), including food, clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control (applies to the global impact of climate change). (2)
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out
of wedlock, shall enjoy the same social protection.
Article 26 (1) Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional education shall
be made generally available and higher education shall be equally accessible to all on the basis of merit. (2)
19
Education shall be directed to the full development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further the activities of the United
Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that
shall be given to their children (“A child had an absolute right to education, independently of the wishes of
its parents).
Article 27: protection of culture. Courts have considered the question of destruction of cultural resources, as
the protection of those cultural elements is implied in the right to enjoy them.
Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any
right to engage in any activity or to perform any act aimed at the destruction of any of the rights and
freedoms set forth herein. the protection of human rights on everyone, not just on States. Further, it does not
limit an individual’s responsibility to those in the community or the State where he or she resides but insists
that these are universal responsibilities.

UNIVERSALITY OF HUMAN RIGHTS

Moral approach
The moral approach to human rights holds that human rights ultimately reflect or derive from the universally
held moral entitlements that individuals have qua moral agents. universality of human rights obvious moral
approach traces human rights to the natural moral rights of persons. Since natural rights apply to all persons,
they are entitlements of everyone universally regardless of national, cultural or political membership. HRs is
seen as subset of NRs.
Some have argued that human rights are a means of protecting and ensuring that each individual can attain
the requisite human capabilities that are essential for living a flourishing human life. since these human
capabilities are common and basic to all persons, the human rights that are meant to protect these
capabilities will have universal scope.
Criticism- universal human rights are themselves hardly universal but reflections of cultural biases. For
instance, the ideal of normative agency — that persons are normative agents who have an interést in
forming, pursuing and revising their ideas of the good life — relies on a western liberal conception of the
individual, one that is not necessarily shared by other political and cultural traditions.
Common core approach
human rights to be the rights or related values that lie in the overlap or intersection of the major value
systems in the world. That is human rights are universal because they reflect the shared moral core of human
values. But this means that only values that are truly common to all qualify as universal.
Criticism: If rights like the right to gender equality or the right to democracy do not belong to the common
core of values, then they cannot be regarded as human rights. Some proponents of the common core
approach to human rights will point out that since societal values develop and evolve, we must not presume
that some rights or values which are not presently in the common core could not eventually gain universal
endorsement, and thereby come to gain the status of human rights. For instance, it is possible that, in time,
societal values in different traditions can evolve to affirm gender equality. Problem with this is that until that
happens, until a right or value falls within the shared consensus, it does not qualify as a universal human
right.

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Historicist approach
universal human rights is already part of the language of international relations in practice and theory. That
is, this approach claims that it is already been accepted idea that there are universal human rights that bind
all states and international actor.
The historicist approach thus does not try to found human rights on some philosophical ideal of human
morality. The idea of human rights is seen as freestanding in a sense. That is, €he idea of human rights is not
presented as something that is grounded on any particular moral conception. This does not mean that we
must disavow any attempts to connect human rights to some moral beliefs, there are different possible moral
foundations for these rights. Within some traditions, one might find a natural rights grounding very
persuasive. Within another tradition, it might be some ideal of human excellence or perfection that appeals.
And within yet others, one might prefer a religious support for human rights. The task is then one of
clarifying this global moral standard and refining its content
the set of human rights includes more than just those values that belong to the lowest common denominator
of the world’s values. Human rights will include all those rights that are necessary for the purpose that we
expect human rights to serve.
Criticism- the universality of human rights is already presumed and is not part of the discussion. And unlike
the common core approach, this universality is not based on a consensus around existing values, but on a
shared value-commitment that is historically informed. the danger that it risks deflating the normative force
of human rights. What if someone denies the ideal of human rights from the outset and claims that the
advent of contemporary human rights discourse is a historical mistake?
Liberal rights
Some liberals believe that including liberal rights [such as right to democratic participation] as human
rights risks rendering human rights too parochial and ethnocentric. Others think that, to stay consistent with
their liberal commitments, liberals ought to expand human rights to include certain liberal rights. The
universality of these rights need not imply a lack of toleration for nonliberal societies, since the scope of
toleration is to be determined within the bounds of rightness. While it is reasonable to require that all
societies, in order to be in good standing, affirm human rights, it is unreasonable to require them to also
endorse liberal rights. This exclusion of liberal rights will depend on how we envisage the global political
culture.
the common denominator on the universal level at the present stage of the development of international
human rights law is only a very general one, namely that the individual deserves to be protected and that the
international community should contribute to this protection. In addition, many states still regard the
treatment of their own nationals as an internal matter and reject foreign reaction to alleged human rights
violations, at least if it reaches a certain level of intensity, as an unjustified form of intervention. The
principle of state sovereignty is in a continuing state of tension with the goal of the effective international
protection of human rights. This is different on the regional level where human rights conventions are based
on a more homogeneous democratic tradition and understanding of basic values (such as the rule of law) in
the member states, such as is the case in Europe.
UN CHARTER Article 55 of the United Nations Charter states that ‘the United Nations shall
promote…universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion’.
Article 56, ‘[a]ll Members pledge themselves to take joint and separate action in cooperation with the
Organization for the achievement of the purposes set forth in Article 55.’ The use of the word ‘pledge’
implies a legal obligation, but the obligation is probably not to observe human rights now but to work

21
towards their fulfilment in the future; the vagueness of the language probably leaves a wide discretion to
states about the speed and means of carrying out their obligations.
Namibia case, the ICJ held: To establish…and to enforce, distinctions, exclusions, restrictions and
limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which
constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the
Charter.
CULTURAL RELATIVISM
defined as the position according to which local cultural traditions (including religious, political, and legal
practices) properly determine the existence and scope of civil and political rights enjoyed by individuals in a
given society. What may be regarded as a human rights violation in one society may properly be considered
lawful in another, and Western ideas of human rights should not be imposed upon Third World societies.
Tolerance and respect for self-determination preclude crosscultural normative judgments.
Radical cultural relativism would hold that culture is the sole source of the validity of a moral right or rule.
The strongest form of radical cultural relativism would hold that the concept "human being" is of no moral
significance; the mere fact that one is a human being is irrelevant to one's moral status. It is true that
premodern societies typically have not recognized "human being" even as a descriptive category, but instead
define persons by social status or group membership.
Radical universalism would hold that culture is irrelevant to the validity of moral rights and rules, which are
universally valid. In order to preserve complete universality for basic rights, the radical universalist must
give absolute priority to the demands of the cosmopolitan moral community over all other ("lower") moral
communities. This complete denial of national and subnational ethical autonomy and self-determination is
dubious at best.
Strong cultural relativism holds that culture is the principal source of the validity of a moral right or rule.
Weak cultural relativism holds that culture may be an important source of the validity of a moral right or
rule.
nothing in the human rights conventions suggests that the respect for human rights depends upon, or can be
modified by, local cultural conditions. exception is article 63(3) of the European Convention, which states
that "[t]he provisions of this Convention shall be applied in [colonial territories] with due regard, however,
to local requirements. The European Court of Human Rights rejected this interpretation in the Tyrer Case,
which involved corporal punishment, a local tradition, on the Isle of Man. The court found that the word
"requirement" embodied the idea of necessity, and that corporal punishment, no matter how accepted by
public opinion and practice or enshrined in the traditions of the Isle, was not necessary to maintain law and
order. Further, the court wrote that no local requirement could enable a party to the Convention to make use
of a criminal sanction in violation of article 3, which prohibits degrading punishment.-" The Tyrer opinion
thus forcefully supports the idea that human rights are non-negotiable in the sense that not even the force of
overwhelming public opinion or state practice may impair them. It also stands for the proposition that
international human rights possess a transboundary meaning that cannot be modified or ignored on relativist
grounds.
Cultural Relativism and Self-Determination
The right of self-determination in international law would thus represent an expression of the entitlement of
all individuals to democratic representative government and to basic human rights.
internal self-determination represents the flip side of the non-intervention principle: it forbids any state from
interfering with the cultural and political choices of autonomous peoples. People have the right to create
whatever form of government they want, no matter how repressive, and human rights claims put forward by
22
other states may not interfere with the fulfillment of this right. Under this view, a people exhausts its right to
self-determination when it achieves the status of a sovereign state. Once the people choose a political and
cultural system, nothing in international law confers a right to change the system.
Criticism- the relativist version of internal self-determination often defines the interests of a people in
mystical or aggregative terms that ignore or belittle individual preferences. Arguments of cultural relativism
are far too often made by economic and political elites that have long since left traditional culture behind.
National unification certainly will require substantial sacrifices of local customs, but the lack of local
cultural sensitivity shown by many national elites that strongly advocate an international cultural relativism
suggests a very high degree of self-interest.
Where there is a thriving indigenous cultural tradition and community, arguments of cultural relativism
based on the principle of the self-determination of peoples offer a strong defense against outside
interference-including disruptions that might be caused by the introduction of "universal" human rights. But
while autonomous communities that freely decide their destiny largely according to traditional values and
practices still do exist throughout the Third World, they are increasingly the exception rather than the rule.
In traditional cultures-at least the sorts of traditional cultures that would readily justify cultural deviations
from international human rights standards- people are not victims of the arbitrary decisions of rulers whose
principal claim to power is their control of modern instruments of force and administration. The human
rights violations of most Third World regimes are as antithetical to such cultural traditions as they are to
"western" human rights conceptions. In fact, authentic traditional cultural practices and values can be an
important check on abuses of arbitrary power.
In sum, under international law, all individuals, regardless of their state of origin, residence, and cultural
environment, are entitled to fundamental human rights. International law does not relieve governments of
the obligation to respect these rights simply because a particular right is inconsistent with local traditions.
Critique of Normative Relativism- (a) there are no universal moral principles; (b) one ought to act in
accordance with the principles of one's own group; and (c), (b) is a universal moral principle.
cultural relativism is not, and ought not to be, the answer to human rights concerns. Supported neither by
international law nor by independent moral analysis, cultural relativism exhibits strong discriminatory
overtones and is to a large extent mistaken in its factual assumptions.’
Intermediate position
Internal evaluation- An internal judgment asks whether the practice is defensible within the basic value
framework of that society. Practices that do not even stand up to such evaluations can in no sense be
defended on cultural terms.
External evaluation- determine whether the practice can or should be accepted or defended, all things
considered.
relativism rests on the notions of moral autonomy and communal self-determination. Respect for
autonomous moral communities would seem to demand internal evaluations. But to rely entirely on internal
judgments would seem to abrogate one's moral responsibilities as a member of the cosmopolitan moral
community; such membership would seem to demand the application of universal standards in external
judgments.
one would have to show that the underlying cultural vision of human nature or society is both morally
defensible and incompatible with the implementation of the "universal" human right in question.
If traditional practices truly are based on and protect culturally accepted conceptions of human dignity, then
members of such a community simply will not have the desire or need to claim such civil rights.
23
Furthermore, some traditional customs, such as brideprice, provide alternative protections for women, and a
sort of indirect conditionality to marriage that addresses at least some of the underlying concerns of Article
16(2) of UDHR. Such factors make it much easier to accept cultural relativity with regard to this right.

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 SUBJECTS
Martin Dixon
• A subject of international law is a body or entity that is capable of possessing and exercising rights,
powers and duties under international law- “international legal personality”.
International Legal Persons can: • Make claims before tribunals • Be subject to some or all of the obligations
imposed by international law • Have the power to make international agreements • Enjoy some or all of the
immunities from the jurisdiction of the national courts of other states.
Brownlie • A subject of international law is an entity possessing international rights and obligations and
having the capacity to a) maintain its rights by bringing international claims, and b) to be responsible for its
breaches of obligations by being subjected to such claims.
Montevideo Convention on the Rights and Duties of States, Art. 1
• A State should possess: • a) A permanent population (stable community, settled but not homogenous,
inhabit a specific territory on a permament basis (occupation alone not enough) no criteria to the size of the
population) b) A defined territory (stable and permanent physical control over territory, but no precise
delimitations needed, ICJ North Sea Continental Shelf, Nicaragua case, Namibia Case. Geographic size does
not matter.) c) A government (effective control of the territory, coercive, centralized legal order, coherent,
stable and effective political organization) • d) A capacity to enter into relations with other state.
Why seek recognition as a State? • Exert sovereign control over territory • Right to non-intervention and
interference from foreign states • Can pursue treaties on trade and investment with other States • Can receive
foreign aid • Can join IOs and pursue cases in international tribunal. Unrecognized state can defend its
integrity and independence
Recognition of State • Declaratory Theory- Recognition is mere acknowledgement of pre-existing legal
capacity. declaration of intent by one state to acknowledge another power as a "state" within the meaning of
international law. Recognition constitutes a unilateral declaration of intent. It is entirely at the discretion of
any state • Constitutive Theory- Recognition which creates statehood or which clothes a new government
with any authority or status in the international sphere.
De facto recognition: When an existing State considers that the new State has not acquired sufficient
stability, it may grant recognition. De jure recognition: is granted when in the opinion of recognizing State,
the recognized State or its Government possesses all the essential requirements of statehood and it is capable
of being a member of the International Community- (has more credibility).
Rights of state as per Draft Declaration on Rights and Duties of States’: independence, jurisdiction, equality,
and self-defence (‘fundamental right to survival’ has been confirmed by the ICJ in a recent advisory opinion
relating to the legality of the threat or use of nuclear weapons, which recognized the fundamental right of
every State to survival as a basis for admitting its right to resort to self-defence.).
UN Charter XIV. Admission of New Members to the United Nations
• Rule 134: Any State which desires to become a Member of the United Nations shall submit an application
to the Secretary-General. Such application shall contain a declaration, made in a formal instrument, that the
State in question accepts the obligations contained in the Charter. • Rule 135: The Secretary-General shall,
for information, send a copy of the application to the General Assembly, or to the Members of the United
Nations if the Assembly is not in session. • Rule 136: If the Security Council recommends the applicant
State for membership, the General Assembly shall consider whether the applicant is a peace-loving State
and is able and willing to carry out the obligations contained in the Charter and shall decide, by a two--
thirds majority of the members present and voting, upon its application for membership. • Rule 137: If the
25
Security Council does not recommend the applicant State for membership or postpones the consideration of
the application, the General Assembly may, after full consideration of the special report of the Security
Council, send the application back to the Council, together with a full record of the discussion in the
Assembly, for further consideration and recommendation or report. • Rule 138: The Secretary-General shall
inform the applicant State of the decision of the General Assembly. If the application is approved,
membership shall become effective instantly.
Crimea and Self-Determination- internal self-determination: signifies that groups or peoples are entitled to a
form of self-government or autonomy within the confines of their mother state. This type of autonomy may
translate into a free exercise of cultural or linguistic rights, or into the creation of a regional parliament, at
best. As long as the mother state respects the people’s right to internal self-determination
external self-determination: gets triggered by the mother state’s utmost lack of respect for the relevant
people, then international law may suggest that such a people should have a right to external self-
determination, which would lead to its separation from the mother state.
The Individual as Subject of International Law
The right of individual petition is a fundamental clause of the human rights treaties that provide for it, upon
which is erected the juridical mechanism of the emancipation of the human being vis-a-vis his own State
for the protection of human rights. Protection of diplomatic envoys • Protection of human rights-
Humanization of International Law • Protection of IHL • Trade and Investment treaties create rights for
individuals and corporations to sue before international and national courts and tribunals
Minority Rights- UN Declaration on the Rights of Persons belonging to National, Ethnic, Religious and
Linguistic Minorities- Look at nondominance, culture, traditions, language- claim for self-determination •
Indigenous Rights ILO Convention 169, UN Declaration on Indigenous Rights- property rights, self-
determination
Duties of Individuals • International Criminal Law holds individuals accountable for war crimes, crimes
against humanity, and genocide • International Criminal Court, ad hoc tribunals, national courts pursuing
universal jurisdiction
NGOs
Groups of persons voluntarily created to act independently of governments on a non-profit basis. Often
pursue transnational issues- human rights, climate change, trafficking, fair trade, labor, etc. Participate as
observers in multilateral treaty negotiation • May offer comments on draft treaties, may offer amicus curiae
to international tribunals, may issue shadow human rights reports to UN committees, often engage in
consulting work producing reports for IOs. They are created under national law.
Duties of MNCs
Ruggie Framework Guiding Principles on Business and Human Rights: 1.The state’s responsibility to
protect the human rights of those under its jurisdiction; • 2.The company’s responsibility to respect human
rights and avoid causing or contributing to adverse human rights impacts through their operations, products,
or services, or by their business relationships; • 3.People’s right to have access to a remedy – be it judicial
or non-judicial – should their human rights be violated.
IOs
They are established by States through international agreements and their powers are limited to those
conferred on them in their constituent document. have a limited degree of international personality,
especially vis-à-vis member States. Nuhanović v Netherlands: international responsibility be shared between
an international organisation and a State. Held dual responsibility between the UN and Dutchbat which
26
implied a shared effective control over the same wrongful conduct. Because of Dutch effective control of the
compound, extraterritorial human rights obligations, resulting from the European Convention on Human
Rights, were fully binding at the time.
INT TRADE LAW
developed countries was providing intensive protection to foreign investment under international law. On
the other hand, some developing countries rejected such an approach and adopted the Calvo Doctrine, which
regulates foreign investment solely under the host state’s regulation. Moreover, foreign investors cannot
have recourse to any dispute resolution procedures that were not available to nationals of the host state. the
foreign investors could seek recourse in the national courts of the host State but were not allowed recourse to
diplomatic protection through their national governments or international arbitral tribunals.
Charter of Economic Rights and Duties of States (considered developing countries)- “[e]very State has and
shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth,
natural resources, and economic activities.”
Similarly, the UNGA Resolution 317189 declared that a host state that expropriates foreign property “is
entitled to determine the amount of possible compensation and the mode of payment ... [A]ny disputes
which might arise should be settled in accordance with the national legislation of [that] State.”
Subsequently, developed countries signed BITs with developing countries because of their fear of
uncompensated expropriation. It also overcame the shortcomings of customary int law bc they were not able
to provide sufficient guidance & protection. BITs have shaped customary international law in terms of
foreign investors’ rights.
BITs refers to “protect investments by investors of one state in the territory of another state by articulating
substantive rules governing the host state’s treatment of the investment and by establishing dispute
resolution mechanisms applicable to alleged violations of those rules.” India follows an ad-hoc arbitration
format in most of its BIT dispute resolution clauses with UNCITRAL rules (United Nations Commission on
International Trade Law) applicable. Different clauses- India is of the view that National Treatment ought
to be provided only at the post-establishment stage and that it may be general practice that ‘investment’ is
provided National Treatment, while ‘Investors’ get Most Favoured Nation treatment. The Most Favoured
Nation clause read along with the National Treatment clause ensure that the investor gets the same
advantages as the “most favored nation” by the country granting such treatment. The Fair and Equitable
treatment has been linked with other substantive standards such as non-discrimination (for example the
India–Korea BIT), the standards are- DP b4 local courts, reasonableness of laws, consistency, non-
discrimination & transparency. In Azurix, the tribunal observed that the standard of fair and equitable
treatment consists of three elements: 1. Fair and equitable, 2. Full protection and security and 3. Not less
than the international law standard. Legitimate expectation- backbone of fair & equitable treatment too
Investor centric and that there ought to be a balance between protecting the Investor and protecting the
policy interests of the Host state. Tecmed decision observed that a severance of legitimate expectation may
occur not just when there is a contractual breach but also when explicit or implicit assurances or
representations which the State made and which were relied upon by the Investor. Denial of benefits- to
ensure that the protection of BITs is provided only to those investors that are nationals of the country which
is the signatory to the BIT.
WTO multilateral agreements on goods, service and intellectual property contain norms and standards and
must be complied by its member States.
Advocation and campaign conducted by NGO functioned as counter-pressure to protect interest of
developing ’ State which often facing great pressure from powerful States. they creates norms and
procedures establish rules effectively with no States participation.

27
State Sovereignty and International Economic Law from the Perspective of a Developing State -
International institutions can be used to prevent domestic interests which will use State power to gain profit
(rent-seeker). international institutions is a link and instrument for States to reach its social and
developmental goals thus they can preserve their legitimacy. Through these institutions as mediums, States
functioned their sovereignty and participated in the various regimes of international system regulations.
The balanced approach- Principle of national treatment restricts a State to give special treatment to certain
domestic product if the same treatment is not given to the same product imported from other State. For
developing States that are generally still in the stage of development to pursuit their economic and social
goals, the gift of these facilities and special treatment to domestic products for developing sectors assumed
to be important and critical is a policy that shoud be allowed. Economic instruments such as subsidies,
import control and safeguard should be more flexibly used for development purpose of developing States.
As well as services which provide public interest (public services) such as health, education, water, etc that
included in ‘traded services’ in the dictionary of WTO’/ GATS’; policy making shoud be given up entirely
to each member States. The WTO agreement on agriculture allows developed States to give major subsidies
for their farmers, whereas developing States have to limit or decrease subsidies and tariff in such sector.
Conditions and requirements in ‘structural adjusment’ which was established by the IMF to developing
States having difficulties in their balance of payment do not consider social and developmental goals of
related States. Conditions established by the IMF are around macro-economic factors, exchange value policy
and structural policies that reach deep down domestic value policy of related States. International trade
regulation should be based and guided by fairness principles, not economic power.
In reality, rules relating to economic globalization have been rapidly developed with strong and effective
dispute settlement system, whereas the important rules relating to human rights are neglected in international
economic law regimes. UN Declaration on the Right to Development 1986 (UNDRD) defines
‘development’ extensively as follows: “a comprehensive economic, social, cultural and political process
which aims at the constant improvement of the well-being of the entire population and of all individual on
the basis of their active, free and meaningful participation in development and in the fair distribution of
benefits resulting therefrom”
Overlap of IMF and WB
Structural policies. IMF surveillance and lending operations moved away from a narrow focus on exchange
rate and other macroeconomic policies [economic surveillance- global economic outlook reports and art IV
consultations, financial assistance, capacity development] to a broader focus encompassing structural policy
issues, given their impact on macroeconomic stability and the sustainability of policies. There are two
reasons:(a) the IMF’s recognition of the longer term and supply-oriented nature of the balance of payments
adjustment process and (b) the IMF’s increased involvement, over time, in surveillance and lending
operations in developing and transition countries, where long-run structural problems are of central
importance to economic stabilization and growth.
WB- functions are project financing, technical assistance, knowledge sharing. Programmes- IBRD Loans,
IDA grants & loans. Focus on poverty reduction, climate change and pvt sector development
Poverty reduction, macroeconomic policy on environment.
WTO is required to consult the IMF when it deals with issues concerning monetary reserves, balance of
payments, and foreign exchange arrangements. For example, WTO agreements allow countries to apply
trade restrictions in the event of balance of payments difficulties. The WTO’s Balance of Payments
Committee bases its assessments of restrictions on the IMF’s determination of a member’s balance of
payments situation.

28
WTO- Facilitate the implementation, administration and operation, and further the objectives, of the
Agreement and of the Multilateral Trade Agreements. Provide framework for the implementation,
administration and operation of the Plurilateral Trade Agreements. Forum for negotiations among its
Members. Its function is to administer the understanding on rules & procedures governing the settlement of
disputes. Rather than having a centralized monitoring and enforcement mechanism, enforcement of WTO
rules relies on members bringing trade disputes before the dispute settlement machinery. The decentralized
system worked, until the Appellate Body crisis, as a fairly effective procedure to not only resolve trade
disputes, but also progressively develop a body of international trade law on which members can rely.

Structure of WTO- Ministerial Conference: Carry out functions of WTO and take necessary actions,
Authority to take decisions on all matters under any of the Multilateral Trade Agreements in accordance
with the specific requirements for decision-making in this Agreement and in the relevant Multilateral Trade
Agreement. General Council: Convene as appropriate to discharge the responsibilities of the Dispute
Settlement Body provided for in the Dispute Settlement Understanding. shall convene as appropriate to
discharge the responsibilities of the Trade Policy Review Body provided for in the TPRM.
Voting in WTO: Consensus: The most common method, where no member formally objects to a decision.
when consensus is not reached, and usually requires a supermajority. For example, a 3/4 majority is required
to adopt an authoritative interpretation of the WTO Agreement. Waivers: The Ministerial Conference can
waive obligations imposed on a member by a multilateral agreement, but this requires a 3/4 majority.
Challenges: suspended operation of the Appellate Body has seriously affected the operation of dispute
settlement mechanism. Abuse of nationals security exception measure, trade remedy measures. Use of
unilateral measures that are not in line with WTO rules. Doha Round of negotiations has been very slow in
reaching a consensus on topics such as agriculture, development and rules.
Rising protectionist measures and tariffs, exemplified by the US-China trade war. Ongoing disputes over
agricultural policies, with developed countries subsidizing their farmers while developing nations seek
wiggle room. Calls to integrate sustainability goals into trade policies, balancing trade liberalization with
environmental protections. Need for regulatory frameworks addressing cross-border data flows and privacy
in the rapidly growing digital trade sector. Increasing preference for bilateral and regional agreements,
raising concerns about trade fragmentation and the WTO's multilateral approach.
GATT- intended to play a small but important gap-bridging role until the economic agreements of the
Havana Charter (1948) came into force. GATT led to progress in reducing world tariff levels, but it was ill-
equipped to handle the broader task of regulating world trade relations without some fundamental
improvements

29
 STATE RESPONSIBILITY
his doctrine holds that a state may be held accountable when it commits an internationally wrongful act
against another state. State responsibility is essential for maintaining order in the international community,
as it establishes the obligation to provide reparation when a breach occurs.
Art. 1 of the International Law Commission’s Articles on State Responsibility states the general rule that
every internationally wrongful act of a state entails responsibility. Art. 2 provides that there is an
internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the
state under international law and constitutes a breach of an international obligation of the state. It is
international law that determines what constitutes an internationally unlawful act, not municipal law.
Art. 8 of the ILC Articles states provides that the conduct of a person or group of persons shall be
considered as an act of state under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that state in carrying out the conduct. Where a state
consents to an act by another state which would otherwise constitute an unlawful act, wrongfulness is
precluded provided that the act is within limits of the consent given. Art 22 gives for exemption w.r.t. self
defence and reprisals if it is lawful countermeasure, and proportionate.
The principle of objective responsibility (‘risk’ theory) maintains that the liability of a state is strict, once an
unlawful act has taken place, which has caused injury and which has been committed by an agent of the
state, the state will be responsible in international law, irrespective of good or bad faith. Contrasting is the
‘fault’ theory, or the subjective responsibility concept. This approach emphasizes that an element of
intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary before his
state can be rendered liable for any injury caused.
In the Corfu Channel case, the International Court appeared to lean towards the fault theory by saying that:
It cannot be concluded from the mere fact of the control exercised by a state over its territory and waters that
that state necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it
necessarily knew, or should have known, the authors. This fact, by itself and apart from other circumstances,
neither involves prima facie responsibility nor shifts the burden of proof.
Responsibility may not be invoked if the injured state has validly waived the claim or is to be considered as
having, by reasons of its conduct, validly acquiesced in the lapse of the claim. If several states are injured by
the same wrongful act, each state may separately invoke responsibility, and where several states are
responsible, the responsibility of each may be invoked.
It is about coercing the state. check-list regarding the lawfulness of solidarity measures that required an
assessment of whether:
(a) the obligation breached had an erga omnes nature;
(b) the breach was 'serious';
(c) the obligation was 'essential' for the protection of the 'fundamental interests' of the international
community;
(d) the breach involved a 'gross or systematic failure' to honour the obligation, and
(e) the breach risked causing 'substantial harm' to the interests protected by the obligation.
Problem is the discretion given to the political leader in deciding all these factors.
Better view- A legally circumscribed solidarity measure should be taken in accordance with institutional
procedures, principles of due process, transparency, and the possibility of administrative or perhaps judicial
review.
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31
 STATE IMMUNITIES
Congo v Belgium: held that a foreign minister enjoys immunities from foreign criminal jurisdiction and
inviolability, whether the minister is on foreign territory on an official mission or in a private capacity,
whether the acts are performed prior to assuming office or while in office, and whether the acts are
performed in an official or private capacity. The Court has, however, excluded that the granting of such
immunities could imply impunity in respect of any crime that a foreign minister may have committed.
Arrest warrant- not only the arrest and prosecution of such a minister while on a private visit abroad, but
also the mere issuance of an arrest warrant, may seriously hamper or jeopardize the conduct of international
affairs of the state for which that person acts as a foreign minister.
Universal jurisdiction- international law only authorizes, at customary level, universal jurisdiction by default
for piracy. Granting jurisdiction to the state apprehending the pirates.
two different categories of immunities from foreign jurisdiction: (i) those which a foreign minister, like any
state official, enjoys for any official act (so-called functional, or ratione materiae, or organic immunities)-
not accountable under this capacity (Rainbow Warrior case).
First class immunity: if he breaches national or international law, this violation is not legally imputable to
him but to his state; in other words, individual criminal or civil liability does not even arise. does not cease
at the end of the discharge of official functions by the state agent (the reason being that the act is legally
attributed to the state, hence any legal liability for it may only be incurred by the state). Is erga omnes.
(ii) those which instead are intended to cover any act that some classes of state officials perform while in
office (so-called personal or, with regard to diplomatic agents, diplomatic immunities)- immune from
foreign jurisdiction to avoid foreign states either infringing sovereign prerogatives of states or interfering
with the official functions of a foreign state agent under the pretext of dealing with an exclusively private
act.
Second class immunity: covers official or private acts carried out by the state agent while in office, as well as
private or official acts performed prior to taking office; in other words, assures total inviolability; (iii) is
intended to protect only some categories of state officials, namely diplomatic agents, heads of state, heads of
government, perhaps (in any case under the doctrine set out by the Court) foreign ministers and possibly
even other senior members of cabinet; (iv) comes to an end after cessation of the official functions of the
state agent; (v) may not be erga omnes.
Exception: perpetration of international crimes. ICJ held in case of genocide, under customary law any
official status does not relieve responsibility. even when one is faced with that exception, the foreign
minister is inviolable and immune from prosecution on the strength of the international rules on personal
immunities. Pinochet case, the House of Lords in the UK ruled that former Chilean dictator Augusto
Pinochet could be prosecuted for acts of torture committed during his regime, even though these acts were
carried out while he was a head of state. The court held that functional immunity does not protect officials
from accountability for such serious crimes.
As soon as the foreign minister leaves office, he may no longer enjoy personal immunities and, in addition,
he becomes liable to prosecution for any international crime he may have perpetrated while in office.
Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts.
While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive
law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot
exonerate the person to whom it applies from all criminal responsibility’. the immunities enjoyed under
international law by an incumbent foreign minister do not represent a bar to criminal prosecution when the
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person has ceased to discharge his official functions; at that stage ‘[p]rovided that it has jurisdiction under
international law, a court of one state may try a former Minister for Foreign Affairs of another state in
respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts
committed during that period of office in a private capacity’ (congo v Belgium)
Balancing of the Requirements of State Sovereignty with the Demands of International Justice- Tadic´:It
would be a travesty of law and a betrayal of the universal need for justice, should the concept of state
sovereignty be allowed to be raised successfully against human rights.
Summing up: as long as a foreign minister is in office, he enjoys full immunity from foreign jurisdiction and
inviolability, for whatever act he may perform. However, once he leaves office, he may continue to be
shielded from foreign criminal or civil jurisdiction for the acts he performed in his official capacity (under
the rules on functional immunities), but not (i) for his private acts and commercial transactions; in addition,
(ii) he may no longer take shelter behind personal (or functional) immunities, with respect to international
crimes such as genocide, crimes against humanity, war crimes, torture, and serious international acts of
terrorism. If he is accused of such crimes, whether they were committed prior to his taking office or after he
left office or while he was in office, he may legitimately be subject to foreign criminal jurisdiction.
Immunity Ratione Materiae Under International Law: Immunity Of The Marines, In Particular
Officials irrespective of their rank in the hierarchy of their government, enjoy immunity if the acts
performed are attributable to the State they serve. Acts that are inherently sovereign and performed on
behalf of the state. These may include negotiations, signing treaties, military actions, or administrative
decisions. Even after an official leaves office, they continue to enjoy functional immunity for acts performed
during their tenure. This is because the actions remain attributable to the state, not the individual.
Immunity ratione personae is accepted only in the case of a limited and select category of high functionaries
of State. Applies to all acts (official and private): Personal immunity covers both official acts and personal
acts. This means that the official is immune from legal proceedings not only for actions taken in an official
capacity but also for private acts, such as personal financial dealings or even criminal conduct, while in
office, leave the office-prosecuted.
In the case of placement of armed forces of one country within the territory of another country, immunity
ratione materiae is governed by special agreements, frequently referred to as ‘status of forces agreements’.

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Italian marines in India case: “the Marines were stationed on a merchant vessel, and not a warship”, the
Arbitral Tribunal noted, this “does not alter their status and the character of their mission as part of the VPD,
undertaking acts in an official capacity attributable to the Italian State.”
Territorial tort exception incorporated in Article 12 of the United Nations Convention on Jurisdictional
Immunities of States and Their Property: a State cannot invoke immunity from jurisdiction before a court of
another State which is otherwise competent in a proceeding which relates to pecuniary compensation for
death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which
is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of
that other State and if the author of the act or omission was present in that territory at the time of the act or
omission. Court held that the Marines were on board the “Enrica Lexie”, and not on Indian territory, when
they committed the acts at issue, therefore this article is not applicable.
Where the court went wrong: Employment of the Marines by a Cargo Vessel: Not a “Government Non-
commercial Service”- the deployment of Italian marines on Italian merchant/cargo vessels is only intended
to “complement”, but not as part and parcel of, “actions conducted at sea by military ships”. In that sense,
despite their status as officials of the Italian naval police, are not authorized “to patrol the seas, board,
inspect or arrest suspect pirate ships” It is a quintessentially commercial contract or transaction between the
Government of Italy and the Italian ship owners. A commercial transaction, acc. to Art. 2, para 1, subpara
(c)(i), of the United Nations Convention on Jurisdictional Immunities of States and Their Property means
“any contract or transaction for the sale of goods or supply of services”. Further, Art. 2, para 2, of the same
Convention provides that the “nature” of the contract or transaction “primarily” determines its commercial
character. However, if the parties to a contract or transaction so agree or if, in the practice of the State of the
forum, it is relevant, the “purpose” of the contract or transaction could also be taken into account.
Marines were operating on a merchant/cargo vessel and not on a ship which is exclusively operated for a
“government non-commercial purpose”, an essential criterion to distinguish services offered as part of
commercial services from services rendered as part of State’s sovereign functions. It is well accepted in int’l
law that only “government non-commercial service” would qualify for immunity from foreign State
jurisdiction i.e. warships. In view of the above, the conclusion reached by the majority of the Arbitral
Tribunal, that the Marines are entitled to immunity from the jurisdiction of India, is not supported by State
practice. The well-established principle under international law that government officials enjoy immunity
from foreign jurisdiction for official acts performed and the service rendered by the Marines was part of an
agreement amounting to a commercial contract.

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