Brownlie Book Summary PDF

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Extremely Detailed Public International Law Notes - 88D
Public International Law (University of Sydney)
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1. Introduction
Nature of International Law
The only essential conditions for the existence of law are the existence of a political community, and the recognition of the
members of settled rules binding upon them in that capacity; international law seems on the whole to satisfy these conditions:
Sir Frederick Pollock
The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is
generally in the interest of all national concerned to honour their obligations under international law: Morgenthau
To show that international law exists, with some degree of reality, the modern lawyer needs to show that the law is
simultaneously normative and concrete -- that it binds a State regardless of that State's behaviour, will or interest but its
content can nevertheless be verified by reference to actual State behaviour, will or interest: Koskennemi
Distinguishes from national system where there are compulsory powers. In international is a loose system with custom as a
basis.
Development of International Law
1. Leading up to WWI
• Treaty of Westphalia in 1648
2. WWI to WWII (1919 -- 1945)
• League of Nations (1920)
• Permanent Court of International Justice (PCIJ) – shaped the way the current world court looks like
3. Post WWII
• Founding of UN and UN Charter (1942)
4. Cold War (1947 -- 1991)
• Major global divide is between capitalism/democracy and communism
• Comes to an end with the end of communism and fall of Berlin Wall
5. Optimistic 1990s
• Blockages of cold war over and possible to get security council to take action
• Ad hoc tribunals in Rwanda, Rome Statute of International Criminal Court
6. September 11, 2001
• Sharp polarization between North and South
• Focus is on security/financial crisis
7. Problems
• Corruption – affects system from how governments are determined, inflicting international institutions (ie oil for food
program)
• Trans-national crime
Is International Law, law?
Critics
• Skeptics have argued that there can be no international law since there is
(1) International law depends on the consent of subjects for its existence.
(2) There is no supreme legislature for the creation or amendment of international law.
(3) There is no effective machinery for enforcement – there is no international police force, and there is no supreme
court of international law which has compulsory jurisdiction.
(4) The rules of international law are difficult to ascertain.
(5) States do not comply with international law.
• Not “real law” because it is commonly disregarded, states obeying it only when they wish to, or when it is in their interest
to do so
John Austin – denial of international law
• Legal Positivism

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1. Introduction
• Does not classify international law as law because law is equivalent to commands of the sovereign and it does not make
sense that states could command them because states are sovereign
H.L.A. Hart – The Concept of Law
• Three categories of rules:
(1) Primary rules, concerning human action and interaction;
(2) Second rules (rules of adjudication, enforcement and change) which underpin and operate in relation to the
primary rules, and
(3) The master ‘rule of recognition’, which enables the observer to identify the components of the system and to treat
them as legal.
• It was the internal attitude, mainly those who are responsible for the application of the second rules, which marked the
system as legal and not merely a set of social rules.
• What mattered was not their acceptance of the primary rules but their acceptance of the system y which those
rules were generated and applied
➡ It was the combination of primary and secondary rule which was the essence of law.
• International law as a marginal form
• Possessing some but not all the characteristics of a developed legal system and then only imperfectly.
• It had only rudimentary institutions of adjudication, enforcement and change.
• No courts of compulsory jurisdiction, no legislature, a frail internal attitude on the part of officials
✓ No other social rules are so close to municipal law as international law.
Brownlie
• Criticise Hart’s opinion
• Whilst it may be said that international law lacks secondary rules, this matters less if one accepts the view that
secondary rules do not play such a decisive role in maintaining the more basic forms of legality in municipal system.
Binding: Why Do States Comply with International Law?
Inherent order Natural Law view

• Law is derived by reason from the nature of man. International law is derived from the application of natural reason to
the nature of the state-person.
• Historically from religion and important in human rights area.
• There are some rights, not because the government has agreed to them, but by virtue of being human.
Positivism View – it is what states say it is States are only bound to international law to which they have consented
• Critics of this theory
‣ Does not explain why the law is binding. States consent to be bound but does not explain why they consent to be
bound. The answer that I have agreed is not sufficient. There has to be something above consent that make the
answer.
‣ May argue that customary law still has implied consent.
- Even for a new State, in practice, the customary international law is binding once a state becomes
independently.
‣ Other scenarios, such as consent by threat of force.
‣ Consent also does not provide an explanation in the scenario where there is an auto-limitation to sovereignty: There
are limits but they are self-imposed.
Difference between Public International Law & Private International Law
Public International Law governs the relationship among States and also their relations with international organisations and
individual persons.
Private International Law (Conflict of Laws) is domestic law which deals with cases wherein foreign law intrudes into the
domestic sphere. It concerns:
• First, in which legal jurisdiction may a case be heard; and
• Second, the law concerning which jurisdiction applies to the issues in a case.

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2. Sources of International Law
Article 38(1) Statute of the International Court of Justice

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognised by civilised nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.
Article 38 of International Court of Justice
Primary Sources
• International Conventions (treaties)
• Customary International Law
• General Principles of International Law
Secondary Sources (“evidence”)
• Judicial Decisions – compromise between common law system and civil law systems (which are much more code based)
• Teachings of most highly qualified publicists
Formal Sources
International Conventions (Treaties)
A treaty is defined an international agreement concluded between states in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.1
Customary International Law
Two elements:
• General practice
• Accept as law
Custom consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by
such states out of a sense of legal obligation or opinio juris: North Sea Continental Shelf Cases
Custom is a “constant and uniform usage, accepted as law”: Asylum Case
State Practice
Objective:The way in which states are conducting themselves officially on the international stage
According to Judge Hudson: “elements Elements
which must be present before a • Duration of Practice
PRINCIPLE OF INTERNATIONAL CUSTOM
can be found to be established”: ‣ There is no required length of time before a particular state practice may be considered custom. Provided that the
a. concordant practice by a number of States principles of consistency and generality are proven, there is no necessity of passage of a long period of time.
with reference to a type of situation falling However, the passage of time can also be evidence of generality and uniformity.
within the domain of international relations
b. continuation or repetition of the practice - Is there such a thing as instant custom?
over a considerable period of time ✓ YES. According to the ICJ in the North Sea Continental Shelf Cases, an instant custom, involving a fairly
c. conception that the practice is required by quick maturing of practice, may emerge.
or consistent with prevailing international
law • Although the passage of only a short period of time is not necessary, or of itself, a bar to the
d. general acquiescence in the practice by formation of a new rule of customary international law on the basis of what was originally a purely
other states.
1 For more information, see topic 6.

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conventional rule, an indispensable requirement would be that within the period in question, short
though it might be, State practice, including that of States whose interests are specially affected,
should have been both extensive and virtually uniform in the sense of the provision invoked.
• Consistency
‣ State practice must be continuous and repetitive.
- Consistency was discussed in the Asylum Case. In this case, however, the Court held that Colombia was not able
to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the
territorial state.
- Repetition of practice or actions of states is necessary. A customary norm of international law arises in
consequence of the repeated action of states. The element of repetition is basic to the formation of a rule of
conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the
consolidation of such practice as a rule of conduct.
• Generality
- Practice need not be exactly the same throughout States; it only needs to be substantial.
- Even without the passage of any considerable period of time, a very widespread and representative participation in
the Convention might suffice of itself, provided it included that of States whose interests were specially affected:
North Sea Continental Shelf Cases
- Universality is not required. As a matter of fact, according to the Asylum Case, there are instances when a regional
custom, or a practice present and binding only to a particular region, may arise.
List of forms that state practice may take --> non-exhaustive
• treaties,
• decision of international and national courts,
• national legislation,
• diplomatic correspondence,
• opinions of national legal advisers,
• practice of international organisations,
• policy statements,
• press releases,
• official manuals on legal questions
Opinio Juris
Opinio Juris is the belief that a certain form of behaviour constitutes a legal obligation.
• According to Brierly, it is the recognition by States that a certain practice is obligatory and that it requires a conception
that the practice is required by or consistent with prevailing international law. It means that a State abides by a practice
because of a sense of legal obligation, as opposed to motives of courtesy, fairness, or morality.
However, it should be noted that opinio juris cannot be in the strict sense considered a ‘ legal obligation’, it arises from mere
belief.
Consent issue
Generally, States are bound only by that to which they consent.
• It can be reflected in the principle of persistent objector
➡ when the state, from the very beginning, has expressly objected to the applicability of the said customary behaviour
to its own State: Anglo-Norwegian Fisheries case
• Exception is that some rules of customary international law are rules of ius cogens, or peremptory norms.
• Examples include: genocide, racial discrimination, torture, etc.
• Legal Consequences
➡ States cannot escape being bound by a customary rule that has the character of ius cogens.
➡ The principle of persistent objector also cannot be relied on.
➡ Voids treaties.
Situation of New State--> different from persistent objector
• What about when, in a region of States, there has already been a long-standing custom and there emerges a new State.
Is the New State bound to comply with the existing customs?
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➡ NO, it will not be bound by such custom. NOT because it was a persistent objector, because obviously it was a
nonexistent State at the time the custom began. It is not bound by virtue of the fact that it did not consent to the
custom and therefore such custom is not binding on the New State in any respect.
For the purpose of the formation of rules of customary international law, consent is commonly indicated by State practice in
the form of acquiescence.
• However, acquiescence cannot be established unless a State has actual or constructive knowledge of the claim being
made: Anglo-Norwegian Fisheries case
Treaty v Customary International Law: Nicaragua (Merits) case
Article 53, 1969 Vienna Convention on Treaties

Treaties conflicting with a peremptory norm of general international law (“jus cogens”)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of
the present Convention, a “peremptory norm of general international law” is a norm accepted and recognised by the international
community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.
Function of a treaty
• Treaties can generally, but not always, serve as evidence of opinio juris.
NOT a supervening relationship
• There are no grounds for holding that when customary international law is comprised of rules identical to those of treaty
law, the latter “supervenes” the former, so that the customary international law has no further existence of its own.
• Difference between treaty and customary international law
Discharge of obligation: Nicaragua Case (Merits)
• Termination or suspension of a treaty on the ground of violation by the other party of a “provision essential to the
accomplishment of the object or purpose of the treaty” means exemption of the obligation of the other party.
• But in the domain of customary international law, the failure of the one State to apply the one rule does not justify the
other State in declining to apply the other rule.
Methods of interpretation and application
• The organs competent to verity the implementation of the treaty and the customary international law are different.
Accordingly, the interpretation and the application may vary.
Does a treaty override custom?
• It depends:
‣ If a treaty was entered into after a custom has been established, it can be said that the treaty will govern as regards
the parties who entered into it. This is so because, the State parties’ ratification of that treaty is an expression of
Every treaty in force is binding upon the their consent to be bound by such, and the principle of pacta sunt servanda should be observed.
parties to it and must be performed by ‣ If a treaty was entered into before a custom develops, the rules are not clear. It would seem that custom, being the
them in good faith. latter intention, should prevail.This, however, would run counter to the very nature of a treaty. In the Continental Shelf
case, the court attempted to reconcile treaties with custom. In practice, therefore, the solution to this situation would
be to reconcile custom with treaty provisions.
1. After an unsuccessful rebellion in Peru Asylum Case (Columbia v Peru) ICJ 1950
in 1948, a warrant was issued for the • No uniform practice and opinio juris in this case.Therefore, no customary norm.
arrest on a criminal charge arising out of
the rebellion of one of its leaders, a
➡ Principles of international law do not recognise any rule of unilateral and definitive qualification by the State granting
Peruvian national. diplomatic asylum.
2. He was granted asylum by Colombia in its ➡ The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has
Peruvian Embassy in Lima.
become binding on the other party. The applicant must prove that the rule invoked by it is in accordance with a constant and
3. Columbia sought, and Peru refused, a safe
conduct to allow the leader out of the uniform usage practiced by the States in question.
country.
4. Columbia brought this case against Peru.
Issues: whether Columbia, as the state • The Columbia Government must prove that the rule invoked by it is in accordance with a constant and uniform usage
granting asylum, is competent to qualify the practised by the State in question, and that this usage is the expression of a right appertaining to the State granting asylum
offence for the purposes of the said asylum? and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law”.
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• According to the facts, no such custom was found.
1. This case concerned the delimitation North Sea Continental Shelf Cases
of the continental shelf in the North Federal Republic of Germany v Denmark and The Netherlands (1969)
Sea, which involved Denmark, the
Netherlands, and Germany. ➡ A treaty provision may relate to custom in one of three ways
2. Denmark and the Netherlands both • It may be declaratory of custom at the time that the provision is adopted;
wanted to apply the equidistance principle ‣ The provisions of the treaty are the codification of customary international law.
according to art.6(2) of the 1958 Geneva
Convention, while Germany opposed as this ✓ Will be bounding non-treaty party as well.
would disproportionately reduce its area, • It may crystallise custom, as States agree on the provision to be adopted during the treaty drafting process; or
due to the concave German coastline.
‣ The treaty contributes to the development of the customary law.
3. Germany denied its obligation under the
Convention because it had not been ✓ The treaty is the final and decisive step in making the customary law.
ratified and instead proposed “the doctrine • The provision may come to be accepted and followed by States as custom in their practice after the treaty’s adoption.
of the just and equitable share”.
The court rejected all the parties’ proposals. ‣ The treaty develops the custom a little bit, but still no custom.
In the present case, the ICJ mainly considered the third position in regards of a treaty:
Provision should be norm-creating.

• It would be necessary that the provision should, at all events potentially, be of a fundamentally norm-creating character such
as could be regarded as forming the basis of a general rule of law.
• Article 6 raised doubt as to norm-creating
• In the first place, Art. 6 is so framed as to put second the obligation to make use of the equidistance method,
causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation
constitutes an unusual preface to what is claimed to be a potential general rule of law.
• Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied
in Art. 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion,
must raise further doubts as to the potentially norm-creating character of the rule.
• Finally, the faculty of making reservations to Art. 6, while it might not of itself prevent the equidistance principle being
eventually received as general law, does add considerably to the difficulty of regarding this result as having been
brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to
exist, and is not the subject of any revision brought about in consequence of a request made under Art. 13-of which
there is at present no official indication-it is the Convention itself which would, for the reasons already indicated,
seem to deny to the provisions of Art. 6 the same norm-creating character as, for instance, Art. 1 and 2 possess.
Widespread & representative participation in the convention including specially affected states.
• Regarded necessary before a conventional rule can be considered to have become a general rule of international law might be
that, even without the passage of any considerable period of time, a very widespread and representative participation in the
convention might suffice of itself, provided it included that of States whose interests were specially affected.
Passage of time immaterial in the formation of a new rule of CIL.

• Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would
be that within the period in question, short though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should
moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.
Opinio juris
• Acceptance that it is binding in law is an essential element of customary international law.
➡ Elements
• A constant and uniform state practice
• Carried out with a belief that the practice is an obligation prescribed by the existing rule of law.
• Over half the States concerned, whether acting unilaterally or conjointly were or shortly became parties to the Geneva
Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of
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the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary
international law in favour of the equidistance principle.
Generally Accepted Principles of Law
Generally accepted principles of law are principles of municipal law common to the legal systems of the world. International
tribunals must have recourse to rules typically found in domestic courts and domestic legal systems in order to address
procedural and other issues.
General principles that have been applied include the following:
• Principles of equity (Diversion of the River Meuse, PCIJ (see Harris, p. 39)
• No State can profit from its own wrongs (Chorzow Factory Case: Indemnity, PCIJ Series A, No. 9, at p. 31)
• States owe reparation for wrongs (Chorzow Factory Case:Merits,PCIJ Series A, No. 17, at p. 29)
• Rules of procedural fairness, e.g. good faith / estoppel
• Rules of evidence and judicial procedure, such as res judicata
Subsidiary Sources
Judicial Decisions and Works of the Most Highly Qualified Publicists
Judicial Decisions under municipal law and works of MHQP are regarded as subsidiary sources of international law. What this
means is that they are subject to the Statute provision on consent, meaning that the decisions have no binding effect except
as regards State-parties that gave their consent.
No Stare Decisis in International Law

This is so because first, the ICJ only derives its jurisdiction from the consent of the State
• Parties coming before it, and submitting themselves to the jurisdiction of the Court.
✓ Without this consent, the ICJ has no jurisdiction at all to determine the rights and obligations of States.
Second, Article 59 of the Statute of ICJ expressly provides “the decision of the Court has no binding force except between the
parties and in respect of that particular case.”
★ Therefore, the effect of this would be that State-parties cannot oblige the court to decide on their case in the same manner
that the Court decided in previous similar cases. At most, these decisions are highly persuasive but not binding upon the
Courts.
If there is no stare decisis, then why would we still need to look at previous decisions of the ICJ?
• Because it’s convenient. Since past ICJ cases have already been decided, laws have already been interpreted and facts already
appreciated, there is nothing precluding the ICJ from looking into these past decisions for purposes of assisting them in
resolving cases before the court.
UN Resolutions
As a general rule, UN Resolutions are NOT binding.

• However, they serve as highly persuasive evidence of the States’ consent to the subject of the Resolution and may
therefore be evidence of customary law.
Exception: There are certain UN Resolutions that are binding, depending on the subject of the Resolution. When made
under Article VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of
Aggression) of the Charter, resolutions are binding.

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Soft law
“Soft law” consists of written instrument that spell out rules of conduct that are not intended to be legally binding, so that they
are not subject to the law of treaties and do not generate the opinio juris required for them to be state practice contributing
to custom.
They have not, but are in the process of, achieving the status of custom. --> Therefore, contribute to the customary law.
• However, they are not really law, hence called soft law.
• Examples include the Helsinki Final Act 1975, the Bonn Declaration on International Terrorism 1978; and the Rio
Declaration on Environmental and Development 1992.

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3. International Law vs Domestic Law
General
Australian Constitution is relatively silent on the status of international law.

• Only makes it clear that the powers of the executive are sufficient wide to include a power to negotiate and conclude
treaties and that the High Court has original jurisdiction in matters concerning treaties.
Westminster parliamentary countries’ common methods adopted in the case of treaties have included:
• Direct implementation of the treaty into municipal law by way of an implementing statute.
• Partial implementation of the treaty into municipal law by way of a statute which partially refers to certain international
law obligations;
• Broad reference in a statute to international law obligations or specific treaties without precise indication as to its
application.
Arguments based on international law and municipal law
• Internationalist may argue that all international law should have municipal effect whether by constitutional process or
thorough statutory implementation.
• Nationalist would argue in favour of the retention of State sovereignty in which the Parliament or legislature remains
supreme.
• International law would only have influence if a conscious decision has been made to adopt it at a national level.
Dualism and Monism
In international law, conflict between municipal law and international law often arise. There are two theories that attempt to
address this conflict: the dualist theory and the monist theory.
• Basically, the dualist theory holds international law and municipal law to be two distinct and separate laws.
• The monist theory considers international law and municipal law to constitute only one system of law.
Dualist Theory
Under this theory, international law and municipal law are two distinct system of law.
Municipal Law International Law
• Custom grown up within the boundaries of the

Source State concerned, and • Custom grown up among States, and
• Law-making treaties.
• Statutes enacted by law-making authority.
Social Relations • State-person relations, and State – State relations

• Person-person (interpersonal) relations
The law is not over, but between states, and
Substance The law of the sovereign is over individuals.
therefore is the weaker law
According to most dualists, municipal law prevails. Dualists are positivists who put strong emphasis on sovereignty.
• Why? --> Positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon
the consent of states.
Monist Theory
Municipal law and international law are essentially the same. There are two primary divisions with regard to the monist
theory 2
• The ethical position on “human rights” (supported by Lauterpacht)
‣ The 'naturalist' strand sees the primary function of all law as concerned with the well-being of individuals, and
advocates that international law is the best way of achieving this well-being. It is an approach characterised by deep
suspicion of an international system based upon the sovereignty and absolute independence of states, and by faith in
2 Shaw, 2003. International Law, 5th ed.

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the capacity of the rules of international law to imbue the international order with a sense of moral purpose and
justice founded upon respect for human rights and the welfare of individual.
• The formalistic logical approach (supported by Kelsen)
‣ This approach finds its basis on Kant’s philosophy. Under this approach, international law is superior to municipal
law. Law is regarded as constituting an order which lays down patterns of behaviour that ought to be followed,
coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred. Since
the same definition appertains within both the internal sphere and the international sphere, a logical unity is forged,
and because states owe their legal relationship to one another to the rules of international law, such as the one
positing equality, since states cannot be equal before the law without a rule to that effect, it follows that international
law is superior to or more basic than municipal law.
The “no common field” approach (supported by Fitzmaurice and Rosseau)

There arises a third approach, under which there is no common field between International Law and Municipal Law. It
considers municipal law and domestic law as distinct laws, much like the French Rule and the English Rule are different
systems of law, one not being superior over the other. They are both the legal element contained within the domestic and
international systems respectively, and they exist within different juridical orders.
• Ultimately therefore, there can be no conflict between any two systems in the domestic field, for any apparent conflict is
automatically settled by the domestic conflict rules of the forum. Any conflict between them in the international field, that
is to say on the inter-governmental plane, would fall to be resolved by international law, because in that field international
law is not only supreme, but in effect the only system there is.
The Theory of harmonisation (supported by O’Connell)

It follows that a monistic solution to the problem of the relationship of international law and municipal law fails because it
would treat the one system as a derivation of the other, ignoring the physical, metaphysical and social realities which in fact
detach them.
But a dualist solution is equally deficient because it ignores the all-prevailing reality of the universum of human experience.
The correct position is that international law and municipal law are concordant bodies of doctrine, each autonomous in the
sense that it is directed to a specific, and, to some extent, an exclusive area of human conduct, but harmonious in that in their
totality the several rules aim at a basic human good.
Municipal Law in International Law
The general rule is that a State may not invoke provisions of its own laws as a justification for the violation of its obligations
under international law:VCLT art.27
• Neither may it claim that its consent to be bound by a treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its consent:VCLT art. 46(1)
The exception to the general rule is when there is a manifest violation of the fundamental laws of the State concerned.
• It is manifest where it would be objectively evident to any state conducting itself in the matter in accordance with normal
practice and in good faith:VCLT art.46(2)
International Law in Municipal Law
Dualism also applies in this regime. In order for international law to become part of domestic law, it has to be made part of
the municipal law.
There are two ways of making international law a part of domestic law: incorporation and transformation: Trendex Trading v
Central Bank of Nigeria (1977)
• Doctrine of incorporation
‣ The rules of international law are incorporated into English law automatically and considered to be part of English
law unless they are in conflict with an Act of Parliament.
➡ Under this doctrine, where the rules of international law change, our English law changes with them.
• Doctrine of transformation
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‣ The rule of international law are not to be considered as part of English law except in so far as they have already
been adopted and made part of our law by the decision of the judges, or by Act of Parliament, or long established
custom.
➡ Under this doctrine, the English law does not change. It is bound by precedent.
Australian Law and Customary International Law
Relationship between common law and international law

• International law is not as such part of the law of Australia: Chung Chi Cheung v The King (1939)
‣ International law is one of the sources of our law, and: Chow Hung Ching v R [1948]
- A rule will be adopted as a source of domestic law if it is ‘not inconsistent with rules enacted by statutes or
finally declared by the courts’: Nulyarimma v Thompson [1999]
- The common law does not necessarily conform with international law, but international law is a legitimate and
important influence on the development of the common law, especially when international law declares the
existence of universal fundamental rights: Mabo case
Incorporation & transformation by the Court
✴ Incorporate & transform international law to domestic common law
• A universally recognised principle of international law would be applied by our courts: Chow Hung Ching v R [1948]
‣ Such universally recognised principle of international law means ‘a rule of international conduct, evidenced by
international treaties and conventions, authoritative textbooks, practice and judicial decisions’: Nulyarimma v
Thompson [1999]
‣ Two scenarios:
- In terms of incorporation of international law, if the contemporary notion of the international law is not
inconsistent with the domestic common law, the Court is free to adopt such rules: Mabo case
- However, if the international law is inconsistent with domestic common law
• Generally speaking, Australian courts will not adopt an international law which is inconsistent with
domestic common law unless legislation transforms the international law into domestic system:
Nulyarimma v Thompson [1999]
• There is no requirement for the common law to develop in accordance with the international
law:Western Australia v Ward [2002]
• Rationale is that international law itself is often vague and conflicting.
• In addition, further two questions may be asked when the contemporary international law is
inconsistent with the domestic common law system: Mabo case
✓ Whether the common law is an essential doctrine of our legal system, and
✓ Whether it is disproportionate to the benefit flowing from the overturning
★If the answer is YES, the common law system should not be overturned.
✴ Incorporate & transform international law to statute
‣ When the statute is not ambiguous in itself, unincorporated international law should not be adopted in interpreting
the statute:Western Australia v Ward [2002]
• It is a matter for the Parliament to incorporate the international law, not the Court.
‣ When the statute is ambiguous, unincorporated international law may assist in determining the content of the
common law:Western Australia v Ward [2002]
✴ Incorporate & transform international law to Constitution
• International law in regards of fundamental rights should be taken into consideration when interpreting a provision
of the Constitution if the provision is not clear enough and the so considered fundamental rights do not conflict with
the provision of the Constitution: Newcrest Mining (WA) Ltd v Commonwealth.
• Rationale is that international law is a legitimate and important influence on the development of the common
law and constitutional law, therefore, when there is an ambiguity of the Constitution, it should be adopted as the
fundamental rights is ‘undergoing evolution’.
• If the provision of the Constitution is clear, no unincorporated international law and personal opinion should be
adopted: Newcrest Mining (WA) Ltd v Commonwealth.
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Effect of incorporation and transformation

• The rule of customary international law, once adopted or received into domestic law have the ‘force of law’ in the sense of
being treated as having modified or altered the common law: Nulyarimma v Thompson [1999]
1. The High Court was asked to consider Mabo v Queensland (No.2) (‘Mabo case’) [1992] HCA 23
whether the rights of indigenous • The Court is free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would
Australian to title over lands held prior to fracture the skeleton of principle which gives the body of our law its shape and internal consistency.
European settlement in 1788 were
extinguished by action of the Crown, or • If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question
whether indigenous rights to ‘native title’ arises whether the rule should be maintained and applied.
were recognisable under the common law
and could coexist with freehold and • Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal
leasehold title to land. system, and
In considering these issues the Court • Whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit
considered the impact of international law
upon the common law. flowing from the overturning.
• The common law does not necessarily conform with international law.
➡ But international law is a legitimate and important influence on the development of the common law, especially when
international law declares the existence of universal human rights.
1. The High Court was required to Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38
interpret s 51(xxxi) of the • In interpreting a Constitution
Constitution as to whether the acquisition
of certain property was on ‘just terms’. • If the Constitution is ambiguous, the Court should adopt that meaning which conforms to the principles of fundamental
Kirby J considered the methods of rights.
constitutional interpretation. ‣ If the fundamental rights derived from the international law do not conflict with, but are consistent with, a provision
1. The central issue for the HC was of the Constitution, it should be adopted.
whether there could be partial
extinguishment of native title claims for the • If the Constitution is clear, the Court must give effect to its term.
purposes of the Native Title Act 1993 ‣ No individual opinion of a judge may be applied.
(Cth), and what principles should be
applied in making that determination. ‣ No international treaties or other international law concerning fundamental rights not yet incorporated in to
A question arose as to whether international Australian domestic law should be adopted.
law had any relevance to these
considerations.
Held, international law is irrelevant to this Western Australia v Ward [2002] HCA 28
appeal. Whether international law should be applied in interpreting a statute even there is no ambiguity in the statute itself?
1. n 1948 there were present on Manus
Island some 300 Chinese nationals,
➡ NO. The task for this Court and other courts in Australia is to give effect to the will of Australian Parliaments as manifested in
sent there to collect surplus war supplies legislation.
sold to the Republic of China by the United • Courts may not flout the will of Australia’s democratic representatives simply because they believe that, all things
States of America.
2. The body included Army personnel and
considered, the legislation would “be better” if it were read to cohere with the mass of (often ambiguous) international
labourers.There was evidence that they obligations and instruments.
were subject to military discipline, exercised ★ Consistency with, and subscription to, our international obligations are matters for Parliament and the Executive.
by officers of the Chinese Army, and that
they were subject to Chinese military law.
3. They did not carry arms.The Army Whether the common law was obliged to develop in accordance with international law?
personnel acted as guards and the
labourers as workmen.
➡ NO.There is no requirement for the common law to develop in accordance with international law.
4. Two labourers, members of this body, were • International law may only occasionally assist in determining the content of the common law.
charged in the Supreme Court of the
Territory of Papua-New Guinea with having
assaulted a native of the island and were
Chow Hung Ching v R [1948] HCA 37
convicted. ➡ International law is not as such part of the law of Australia, but a universally recognised principle of international law would be
An issue arose for consideration by the HC as applied by our courts.
to whether those person enjoyed sovereign
immunities under international law. ➡ International law is one of the sources of our law.
Held: It did not appear that the accused were
members of a military force of China, Nulyarimma v Thompson [1999] FCA 1192
therefore they had no such immunity from the
jurisdiction of the Supreme Court of the Wilcox J
Territory as might have been possessed by a ➡ The prohibition of genocide is a peremptory norm of customary international law, giving rise to a non-derogatable obligation
member of such a force.
by each nation State to the entire international community.
1. A magistrate Court refused to issue
warrants for the arrest of a number
of federal parliamentarians on information
12
that they had committed acts of genocide.
2. An appeal against the magistrate Court’s
decision.
Held, the crime of genocide did not exist
under the common law in Australia.

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➡ Ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is
enacted.
➡ It is one thing, for courts of a particular country to be prepared to treat a civil law rule like the doctrine of foreign sovereign
immunity as part of its domestic law, whether because it is accepted by those courts as being ‘incorporated’ in that law or
because it has been ‘transformed’ by judicial act. It is another thing to say that a norm of international law criminalising
conduct that is not made punishable by the domestic law entitles a domestic court to try and punish an offender against that
law.
23. It is at this point that the contest between the “incorporation” approach and the “transformation” approach becomes
material. Merkel J reviews that contest in some detail. It appears the incorporation approach is now dominant in England,
Canada and, perhaps, New Zealand. The Australian position is far from clear. However, in his paper “International Law as a
Source of Domestic Law,” published in Opeskin, International Law and Australian Federalism (1997), after reviewing the relevant
High Court decisions, Sir Anthony Mason said (at p 218) “the difficulties associated with the incorporation theory and proof of
customary international law suggest that, in Australia, the transformation theory holds sway”. Statements made in Chow Hung
Ching v The King (1949) 77 CLR 449, which have been criticised by commentators but not disavowed by the High Court, seem
to justify that conclusion.
MerkeL J
‘Source’ view or the common law adoption approach:
• A recognised prerequisite of the adoption in municipal law of customary international law is that the doctrine of public
international law is ‘a rule of international conduct, evidenced by international treaties and conventions, authoritative
textbooks, practice and judicial decisions’.
• The rule must not only be established to be one which has general acceptance but the Court must also consider whether the
rule is to be treated as having been adopted or ‘received into and so become a source of English law’.
• A rule will be adopted or received into, and so a source of, domestic law if it is ‘not inconsistent with rules enacted by statutes
or finally declared by the courts’.
• The rule of customary international law, once adopted or received into domestic law have the ‘force of law’ in the sense of
being treated as having modified or altered the common law.
Treaties and Municipal Law: Basic Principles
Treaties can take several forms:

• Treaties which have been concluded, are not ratified by a State and yet to enter into force.
• Treaties which have entered into force, but which a State has yet to ratify.
• Treaties which have been ratified by a State but have yet to enter into force
• Treaties which have entered into force and been ratified by the State.
Incorporation in the context of treaties, is different from the transformation / incorporation approach to international law in
municipal law
• In the context of treaties, it refers to either clear executive or legislative action of the State which has the effect of
adopting the treaty into its municipal law.
Implementation of treaties in Australia: 3
• Once it has been decided to enact new legislation for a treaty, the content of the treaty and the practice of other
countries in the implementation of the same treaty would be examined as would precedents for implementation of
similar treaties.
• How can we do with a treaty?
• One method of implementation is simply to give the treaty the force of law.
‣ This method might be used where the treaty itself has been drafted with an eye to tis incorporation into
domestic law.
✓ Using the exact words of a treaty when implementing that treaty into domestic law.
• Parliament passes legislation to approve treaties.
3 Cases and Materials with Australian Perspectives, International and municipal law, pp 198. (Additional materials)
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‣ The mere approval by legislation of a treaty does not give the treaty the force of law.
• The more common practice is to translate the relevant provisions of international law into traditional legislative
language and thus to avoid the uncertainty inherent in the drafting of many treaty provisions.
• A completely new statutory regime may be created when the subject are covered by the treaty has not previously
been the subject of Commonwealth legislation or where there is a desire to emphasise the importance of a treaty.
• Legislation may make no reference to a treaty.
• This might occur where constitutional validity does not support to enact legislation for the treaties.
• Use of legislation rather than statute.
Treaties in Australian Law
The Australian position on transformation and incorporation of treaties is heavily influenced by Australia’s constitutional
structure.
➡ The idea of separation of power. The power to conclude treaties differentiates from the power to make the treaty
effective within the domestic law:Tasmania Dam Case
➡ Whether an international Convention is effective within Australia depends on the Parliament’s intention: Badley v
Commonwealth [1973]
• More often than not, ratification of a convention does not directly affect Australian domestic law unless and until
implementing legislation is enacted: Dietrich v R [1992]
Legislation for treaties
• Where a subject matter has become a matter of international concern, even in the absence of a treaty, Parliament has
the power to make legislation under section 51(xxix) of the Australian Constitution:Tasmania Dam Case
• Any international obligation imposed upon Australia by a bona fide international treaty could form the basis for legislation
enacted in reliance on s 51(xxix):Tasmania Dam Case
‣ Bona fide requirement: Commonwealth Parliament would not be allowed to rely upon a treaty negotiated with the
sole purpose of conferring power under s 51(xxix): Horta v Commonwealth [1994]
‣ The must be a reasonable proportionality between the law and the purpose of discharging the obligation under the
convention with respect to external affairs:Tasmania Dam Case
➡ In terms of make legislation under s 51(xxix) for the purpose of discharging the obligation under the treaty,
Parliament cannot depart from the provisions of the treaty and enact legislation which goes beyond the treaty
or is inconsistent with the treaty:Tasmania Dam Case
‣ However, s 51(xxix) can only be relied on when the treaty deals with a subject otherwise falling outside
commonwealth legislative power. For example, defence treaties can be implemented pursuant to the defence power
(s 51(vi))...: George Winterton, <Limits to the use of the “treaty power”>
‣ The treaty-implementation power in s 51(xxix) should not extend to treaties which are void under international law:
George Winterton, <Limits to the use of the “treaty power”>
• Effect of legislation
‣ Where municipal legislation imports international agreement, conventions and treaties, those international
instrument will have operative effect: Project Blue Sky v Australian Broadcasting Authority [1998]
- Two categories of municipal laws should be considered:
✓ Law based on international instruments and are clearly designed to give effect to international obligations
✓ Law directed to take into account the provisions of named international instruments to which Australia is a
party,
• For example, provision requires that the peoples conduct in a manner consistent with various matter,
including Australia’s international obligations or agreements such as XXX convention.
• This situation is Project Blue Sky case.
‣ However, a provision like “XXX convention is approved” cannot be regarded as having binding effect of the treaty
because it does not reveal any intention to make the Convention binding upon persons within Australia as part of the
municipal law of this country: Badley v Commonwealth [1973]
Court for treaties
• Where a legislation is ambiguous, treaties may be used to interpret a legislation: Minister of State for Immigration and
Ethnic Affairs v Teoh [1995]
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‣ In construing domestic legislation which is ambiguous, Courts will presume that Parliament intends to legislate in
accordance with its international obligations: Dietrich v R [1992]
• Treaties, whether incorporated or unincorporated, may be use as a legitimate guide in developing the common law:
Minister of State for Immigration and Ethnic Affairs v Teoh [1995]
‣ However, due circumspection should be maintained in the following aspects
- The nature of the relevant provision;
- The extent to which it has been accepted by the international community;
- The purpose which it is intended to serve;
- Its relationship to the existing principles of our domestic law.
• Unincorporated treaties can create legitimate expectation on the part of people. Though Government may negative the
legitimate expectation, procedural fairness requires that the persons affected should be given notice and adequate
opportunity to put arguments on the point Minister of State for Immigration and Ethnic Affairs v Teoh [1995]
‣ Such an expectation cannot arise where there is either a statutory or executive indication to the contrary.
1. Tasmania challenged the
constitutional validity of the World
Heritage Properties Conservation Act 1983 Commonwealth v Tasmania (‘Tasmanian Dam Case’) [1983] HCA 21
(Cth) enacted by the Commonwealth The power to conclude treaties needs to be distinguished from the municipal law limitations which may exist upon the
Parliament in order to stop Tasmania from
proceeding with a development to build a Commonwealth under the Constitution to give effect to those treaties in federal law.
hydro-electric dam in an area of south-
west Tasmania that was listed on the World
Heritage List established under the 1972
Any international obligation imposed upon Australia by a bona fide international treaty could form the basis for legislation
Convention for the Protection of the World enacted in reliance on s 51(xxix).
Cultural and Natural Heritage. • Bona fide required
Held, the Act was valid.
1. In reliance upon UN Security Council • The absence of any reasonable proportionality between the law and the purpose of discharging the obligation under the
Resolutions, the Commonwealth convention would preclude characterisation as a law with respect to external affairs.
issued regulations under the Charter of the
United Nations Act 1945 (Cth) which
placed constraints upon the operation The fact that the power (conferred by s 51(xxix) may extend to the subject matter of the treaty before it is made or adopted by
within Australia of the ‘Rhodesian Australia, because the subject matter has become a matter of international concern to Australia.
Information Centre’, which was operated by
the Government of Rhodesia. • However, it does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by
2. Section 3 of the Act provided that “The Australia and enact legislation which goes beyond the treaty or is inconsistent with it.
Charter of the United Nations is
approved”.
3. The validity of the regulation was Bradley v Commonwealth [1973] HCA 34
challenged. The provision in section 3, i.e., the Charter is approved, does not make the Charter itself binding on individuals within Australia
Held, the Resolution of the Security Council as part of the law of the Commonwealth because it does not reveal any intention to make the Charter binding upon persons
had no force in Australia.
1. An appeal to the HC on the grounds within Australia as part of the municipal law of this country.
that a miscarriage of justice arose
because an accused was unrepresented by
Dietrich v R [1992] HCA 57
counsel at trial, contrary to ICCPR to which
Australia is a party. • Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law;
Whether the right to a fair trial, with legal • The rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific
representation, was reflective of international
law as found in the ICCPR. legislation is passed implementing the provisions.
The conviction was set aside and a new trial ➡ In construing domestic legislation which is ambiguous, Courts will presume that Parliament intends to legislate in accordance
ordered. with its international obligations.
1. Teoh, a Malaysian citizen, came to
Australia where he married.
2. Children were born in the course of the Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
marriage.
3. Following conviction of drug-related
The consistency principle
offences,Teoh was determined to be not ➡ Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with
eligible for a grant of resident status and Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which
became subject to possible deportation
under the Migration Act 1958 (Cth). the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.
4. Submission were made to the HC as to the
status of the Convention on the Rights of The legitimate influence principle
the Child in Australian law and whether its
provisions should have been taken into ➡ The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental
account. rights, may be used by the courts as a legitimate guide in developing the common law.
Whether the Court in Teoh’s case should have
taken into account the children over which he • But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to
had parental responsibility? incorporate the provisions of a convention into our domestic law.
The Court held by a 4:1 majority that the
15
best interest of the child should have been
taken into account by the decision-maker and
that a legitimate expectation existed that the
terms of the Convention should have been
considered.

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‣ Much will depend upon the nature of the relevant provision, the extend to which it has been accepted by the
international community, the purpose which it is intended to serve and its relationship to the existing principle of our
domestic law.
The legitimate expectation principle

➡ Ratification of a convention is a positive statement by the executive government to the world and to the Australian people that
the executive government and its agencies will act in accordance with the Convention.
➡ That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indication to
the contrary , that administrative decision-maker will act in conformity with the Convention.
➡ The existence of a legitimate expectation does not necessarily compel the people to act in that way, but if a
decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires
that the persons affected should be given notice and an adequate opportunity of presenting a case against the
taking of such a course.
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4. Personality, Statehood, Recognition
Definition of Subject of International Law
A subject of international law is an entity possessing international rights and obligations and having the capacity4
• To maintain its rights by bringing international claims;
• To be responsible for its breaches of obligation by being subjected to such claims.
Personality can be embodied in:
• The capacity to make claims in respect of breaches of international law;
• The capacity to make treaties and agreements valid on the international plane;
• The enjoyment of privileges and immunities from national jurisdiction.
Established legal persons:
• States
• Entities legally proximate to States: e.g., the former Free City of Danzig
• Entities recognised as belligerents, i.e., insurgent(叛乱者) bodies
• International administration of territories prior to independence.
• International organisations
• Individuals
Note that the above list is NOT exclusive. There are other recognised subjects of international law namely recognised to have
international legal personality, namely:
• Corporations, public and private (not all)
• Non-self-governing peoples
• Entities sui generis, for example, Holy See
State as Subjects of International Law
A state may be defined as a group of people living together in a defined territory under an independent government organised
for political ends and capable of entering into international relations.
Elements of a State:5
Permanent population
• A community of persons sufficient in number and capable of maintaining a permanent existence of the community and
held together by a common bond of law.
➡ There is no lower limit to the size of a State’s population.
- Nauru, for example, has only 9000 inhabitants.
A defined territory
• A fixed portion of the surface of the earth in which the people of the state reside.
• A State may still be recognised as a legal person if the State’s territory has a sufficient consistency, even though its
boundaries have not yet been accurately delimited: Deutshe Continental Gas-Gesellshaft v Polish State
Government
• An agency through which the will of the state is formulated, expressed and realised.
• Failed states: a failed State is a State perceived as having failed at some of the basic conditions and responsibilities of a
sovereign government.
‣ Elements of “failed States”:
- Are associated with internal and endogenous problems;
- A total or near total breakdown of structures guaranteeing law and order;
- The absence of bodies capable of representing the State at the international level and of being influenced by
the outside world.
Independence
4 Brownlie, page 115.

5 Developed from Montevideo Connection on Rights and Duties of States 1993, Article 1.
17

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• Independence is also described as sovereignty, i.e., the capacity to enter into relations with other States: Austro-German
Customs Union Case (1931)
• Independence needs to be declared:Taiwan issue.
• Meeting the criteria for statehood will not in and of itself give a state the ability to enter into international relations with
other states. A state must be recognised by others before it fully assumes true international personality.
‣ Although recognition is related to the presence of the basic requirements for statehood, it neither requires such a
finding or always follows such a finding.
• Being sovereign and equal to others, a state has certain rights and corresponding duties.
‣ Rights include:
- exclusive control over its territory
- exclusive control over its permanent population (with certain provisos concerning the int'l protection of human
rights)
- exclusive control over other aspects of its domestic affairs
‣ Duties include:
• not to intervene overtly or covertly in the affairs of other states
- not to interfere with other states' exclusive domestic jurisdiction
• Extinction and succession
‣ Definition
- ‘State succession’ means the replacement of one State by another in the responsibility for the international
relations of territory:Yugoslavia Arbitration Commission (Opinion No.1)
- The dissolution of a State, i.e., extinction, means that it no long has legal personality, something which has major
repercussions in international law:Yugoslavia Arbitration Commission (Opinion No.8)
‣ Consequence of succession:Yugoslavia Arbitration Commission (Opinion No.1)
- After succession, the States concerned are free to settle terms and conditions by international agreement.
- However, the peremptory norms of general international law are binding on all the parties to the succession.
‣ In practice, when will extinction occurs? 6
- When one State merges into another and becomes merely a part of it
- When a State breaks up so that its whole territory henceforth comprises two or more new States.
- When a State breaks up into parts all of which become part of other -- usually surrounding -- States.
- Formerly, when a State has been subjugated, i.e., annexed by the victorious State after conquest in war.
‣ Types of succession7
- Universal succession: SFRY
- Partial succession: USSR -- Russian Republic
★ Consider the proportion of the territory, population, etc.
• The Russian Public’s territory constituted 76% of the total territory of the USSR and 51% of the total
population.
• The territory of the FRY, by contrast, comprises 40% of the territory of the SFRY, and its population, 45%.
‣ Rules on Succession of States
- Succession to territory
✓ The succeeding state assumes all the capacities, rights and obligations of the predecessor state with
respect to that territory
- Succession to state property
✓ Where a part of State A’s territory becomes territory of State B, the property of A located in that territory
passes to B.
✓ When State A is absorbed by State B, A’s property passes to B, wherever the property is located.
✓ Where part of State A becomes a separate state, property of the State A located in the territory of the
separate state become the separated state’s.
- Succession to public debts
6 Oppenheim Vol.1, pp204.

7 Oppenheim Vol. 1, pp209-210
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✓ Where part of the territory of State A becomes territory of State B, local public debt and the rights and
obligations of State A under contracts relating to that territory are transferred to State B.
✓ Where state A is absorbed by State B, the public debt, rights and obligations of State A pass to State
B.Where part of State A becomes a separate state, local public debt, rights and obligations of the
predecessor state under contracts relating to the territory of the new state pass to the new state.
- Succession to contracts
✓ When part of State A becomes territory of State B, State A’s international agreements with respect to that
territory ceases and the force of the treaty transfers to State B. this is called the “moving treaty rule” or
“moving boundaries rule”. (Basically, the treaty follows the territory.)
✓ When a State is absorbed by another State, the international agreements that govern the absorbed state
will now be those applicable to the absorbing state.
✓ When there is a new state, it does not succeed to the treaties of the predecessor state unless it accepts
agreements or agree to it or acquiesced to it. This is called the “clean slate theory”. (Because the new state
accedes to no treaties unless those ratified by it):Yugoslavia Arbitration Commission (Opinion No.1)
• However, the peremptory norms of general international law are binding on all the parties to the
succession.
A principle of international law that • Principle of uti possidetis: pre-existing boundary and territorial arrangements continue to be binding notwithstanding
states that newly formed sovereign states ‣ Uti possidetis is recognised as a general principle in international law:Yugoslavia Arbitration Commission (Opinion No.
should have the same borders that their 3)
preceding dependent area had before their
independence. • Alternation of existing frontiers on boundaries by force is not capable of producing any legal effect: Yugoslavia
Arbitration Commission (Opinion No.3)
Self-determination
• This is a broader concept than sovereignty.
• All peoples have a right to self-determination. By virtue of that right, they freely determine their political status and freely
pursue their economic, social and cultural development.
‣ General
- In a case of independence, the principle of self-determination is a part of customary international law: Western
Sahara Case (1975)
• It is a principle erga omnes, i.e., towards all: East Timor case
- Situations where the self-determination not be considered:Western Sahara Case (1975)
• A certain population does not constitute a “people” entitled to self-determination; or
• On conviction that a consultation was totally unnecessary, in view of special circumstances.
• An imported, colonial population, replacing the earlier population: Gibraltar case
‣ Who is people?
- ‘People’ is to be understood in the sense of all the peoples of a given territory, including those minorities and
ethnic groups:Yugoslavia Arbitration Commission (Opinion No.2)
• Levels of claims to self-determination:
‣ Establishment of new states – the claim by a group within an established state to break away and form a new
entity.
‣ Claims to be free from external coercion, or the claim to overthrow effective rulers and establish a new government
Classification of States
Independent States
• A state who is not subject from dictation from others with respect to the freedom to enter into external affairs is known
as an independent state. It may either be:
‣ Simple states
- A simple state is that which is placed under a single and centralised government exercising power over both its
internal and external affairs.
‣ Composite states
- A composite state consists of two or more states, each with its own separate government but bound under a
central authority exercising to a greater or lesser degree control over their external relations.
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(a) Real union – created when two or more states are merged under a unified authority so that they form a
single international person through which they act as one entity.
(b) Federal union – combination of two or more sovereign states which upon merger cease to be states,
resulting in the creation of a new state with full international personality to represent them in their
external relations.
(c) Confederation – organisation of states which retain their internal sovereignty and to some extent, their
external sovereignty while delegating the collective body power to represent them as a whole for certain
limited and specified purposes.
(d) Personal union – comes into being when two or more independent states are brought together under the
rule of the same monarch.
Dependent States
• Dependent states fall into two general categories, the protectorate and the suzerainty. One view is that the protectorate
always retains a greater measure of control over its external affairs than the suzerainty.
• Protectorate: these are dependent states which have control over their internal affairs but whose external affairs are
controlled by another state.
Neutralised States
• An independent state whether simple or composite may be neutralised through an agreement with other states by virtue
of which the latter will guarantee the integrity and independence provided it refrains from taking any act that will involve
it in war or other hostile activities except for defensive purposes. Example: Switzerland was neutralised in 1815 and has
managed to maintain its status despite the many wars that has engulfed Europe since the Congress of Vienna.
Independence
Austro-German Customs Union Case (1931)

What is the definition of "independence"?
➡ Independence is really no more than the normal condition of States according to international law; it may also be described as
sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than
that of international law.
Extinction and Succession of State
Yugoslavia Arbitration Commission

1. On 20 November 1991 Lord Opinion No.1 (November 29, 1991)
Carrington asked if some republics The commission replied on 29 November 1991 that "the Socialist Federative Republic of Yugoslavia is in the process of
seceded from Socialist Federal Republic of dissolution"
Yugoslavia (SFRY) (南斯拉夫), which, as
Serbia (塞尔维亚) and Montenegro (⿊黑
⼭山共和国) had claimed, continues to ➡ The existence or disappearance of the State is a question of fact; that the effect of recognition by other States are purely
exist, or did SFRY dissolve and all of the
republics were equal successors to the
declaratory;
SFRY. ➡ The State is commonly defined as a community which consists of a territory and a population subject to an organised political
authority;
• That such a State is characterised by sovereignty;
➡ In the case of federal-type State, the existence of the State implies that the federal organs represent the components of the
Federation and wield effect power;
➡ ‘State succession’ means the replacement of one State by another in the responsibility for the international relations of
territory.
• After succession, the States concerned are free to settle terms and conditions by international agreement.
• However, the peremptory norms of general international law are binding on all the parties to the succession.

1. On 18 May 1992, Lord Carrington Opinion No.8 (July 4, 1992)
asked if the dissolution referred in the In this decision, the Commission decided that the legal process of the dissolution of the SFRY had completed, and that hence the
Opinion No 1 could now be regarded as SFRY no longer existed.
complete?
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➡ The dissolution of a State means that it no long has legal personality, something which has major repercussions in
international law.

1. On 20 November 1991 Lord Opinion No.3 (January 11, 1992)
Carrington asked: "Can the internal Applying the principle of uti possidetis, the commission concluded on 11 January 1992 that "The boundaries between Croatia
boundaries between Croatia and Serbia and Serbia, between Bosnia and Herzegovina and Serbia, and possibly other adjacent independent states may not be altered
and between Bosnia and Herzegovina and
Serbia be regarded as frontiers in terms of except by agreement freely arrived at." and "Except where otherwise agreed, the former boundaries become frontiers protected
public international law?" by international law."
➡ Uti possidetis is recognised as a general principle in international law.

• Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles.
➡ Alternation of existing frontiers on boundaries by force is not capable of producing any legal effect.
Self-determination
1. In 1884, Spain colonised W.S. and it Western Sahara Case (1975)

remained a colony until recently. • GA Res 1514 (XV) provided basis for process of decolonisation.
Population was mostly nomads. Its assets
lie in phosphates.
• It contemplates 3 possibilities for non-self-governing territories:
2. In 1966, the GA invited Spain to (a) emergence as a sovereign independent State;
decolonize and asked it to arrange with (b) free association with an independent State; or
Morocco and Mauritania for a referendum
under auspices of UN.
(c) integration with an independent State.
3. Spain agreed to hold referendum in 1975. • It also contemplates that "Free association should be the result of a free and voluntary choice by the Peoples of the
4. At that time, Morocco claimed the territory territory concerned expressed through informed and democratic processes" [which could be supervised by the UN]
based on a "historic title" that predated
Spain's acquisition. Mauritania did the • GA Res 2625 (XXV) mentions other possibilities besides independence, but reiterates the basic need to take into account the
same. wishes of the people concerned.
5. GA sought an advisory opinion in 1974 as
to the status of the territory.
Deal with the basic principles governing the ➡ A norm of international law has emerged applicable to the decolonisation of non-self governing territories under aegis of the
“self-determination”. UN. It is for people to determine the destiny of the territory.
➡ From this perspective, the existence of ancient "legal ties", while they may influence some of the projected procedures for
decolonisation, can have only a tangential effect in the ultimate choices available to the people.
➡ Situations where the people’s will not be considered:
• A certain population does not constitute a “people” entitled to self-determination; or
• on conviction that a consultation was totally unnecessary, in view of special circumstances.
Terra nullius
Area was not terra nullius at the time of Spain’s colonisation. Terra nullius means a territory belonging to no one, over which
sovereignty can be acquired by occupation.This is because:
1. State practice indicates that a territory inhabited by tribes having a socio-political organisation is not terra nullius;
2. Spain never treated its case as occupation, but merely “protection.”
There are no legal ties so there can be no reversion to either Morocco or Mauritiana. Both Morocco and Mauritiana claim to
have legal ties with Western Sahara prior to its colonisation by Spain through.
• Morocco claims to have “immemorial possession,” and public display of sovereignty, uninterrupted and uncontested for
centuries, as evidenced by the Arab conquest in 7th Century AD. The court rejected this contention because there was no
display of control, but merely of allegiance of some (not all) of the nomadic people.
• Mauritiana bases its claim on the Mauritian entity, which denotes the cultural, geographical and social entity existing in the
tribes of Western Sahara.The court rejected this contention because there was no common institution recognised by the tribes.
• In addition, the ICJ took note of the following facts:
a. the practice of taxation was done by the people of Western Sahara for themselves;
b. the nomadic nature of the tribes is contrary to the concept of sovereignty;
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c. there was no evidence the people recognised any further allegiance outside their local leaders.

1. Chairman of the Conference, Lord Opinion No.2 (January 11, 1992)
Carrington, on Yugoslavia requested The commission concluded on 11 January 1992 that "that the Serbian population in Bosnia and Herzegovina and Croatia is
the Arbitration Commission’s opinion on the entitled to all the rights concerned to minorities and ethnic groups[...]" and "that the Republics must afford the members of
following question:
• Does the Serbian population in those minorities and ethnic groups all the human rights and fundamental freedoms recognised in international law, including,
Croatia (克罗地亚) and Bosnia (波 where appropriate, the right to choose their nationality".
斯尼亚) and Herzegovina (⿊黑塞哥
维那), as one of the constituent
peoples of Yugoslavia, have the right to ➡ The right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris)
self-determination? except where the States concerned agree otherwise.
➡ Where there are one or more groups with a State constituting one or more ethnic, religious or language communities they
have the right to recognition of their identity under international law.
Recognition
Recognition of State
Recognition means the act of acknowledging the capacity of an entity to exercise rights belonging to statehood.
• The recognition of states is decided mainly on the basis of political considerations.
Can an entity claim to be a state before it is recognised by other states? There are two views on this:
• The Declaratory Theory:Yugoslavia Arbitration Commission (Opinion No.10)
‣ Recognition is a declaration or acknowledgement of an existing state of law and fact, legal personality have been
conferred previously by operation law.
- The consequence is that if it does exist in fact, then whether or not it has been formally recognised by other
States, it has a right to be treated by them as a State.
‣ Recognition is simply evidence that the international law requirements are met.
‣ A State may recognise another State as a State even if it does not have all the elements of a State found in the
Montevideo Convention
• Constitutive Theory
‣ The political act of recognition is a precondition of the existence of legal rights.
- Has to be recognised then it can be obtain rights and obligation under international law.
- Difficulty arises when a State is recognised by A but not recognised by B, and therefore apparently both an
“international person” and not an “international person”.
Legal functions of recognition
• The determination of statehood, a question of law: such individual determination may have evidential value;
• A condition of the establishment of formal relations, including diplomatic relations and the conclusion of bilateral treaties.
Recognition is a matter of intention and may be express or implied.
British and US practice
• British: need to be qualified with Montevideo Connection on Rights and Duties of States 1993.
• US: International law does not require a State to recognise another entity as a State; it is a matter for the judgment of
each State. Montevideo Connection on Rights and Duties of States 1993 will be taken into consideration as well as
whether the entity in question has attracted the recognition of the international community of States.
Recognition of Government
In international law, the legal entity is the State, the government is in normal circumstances the representative of the State,
entitled to act on its behalf.
• The absence of a recognised State with respect to some area of the world raises the possibility of a legal vacuum;
• The absence of a recognised government does not lead to a loss of title.
Recognition of government is the act of acknowledging the capacity of an entity to exercise powers of government of a state.
De iure & De facto recognition -- occurs in the context of recognition of governments
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• The conditions under international law for recognition of a new regime as the de facto government of a State are that
the new regime has in fact effective control over most of the State’s territory and that this control seems likely to
continue.
• A de facto gov't is one which is really in possession of them, although the possession may be wrongful or precarious:
Luther v Sagor [1921]
• The conditions for the recognition of a new regime as the de iure government of a State are that the new regime should
not merely have effective control over most of the State’s territory, but that it should, in fact, be firmly established.
• De iure recognition is irrevocable while de facto recognition can be withdrawn --> legally speaking.
• Taiwan seems to be a non-state territory, which is de jure part of China.
Common law authorities for recognition of Government
‣ The factors to be taken into account in deciding whether a government exists as the government of a State are:
Woodhouse case
- Whether it is the constitutional government of the State?
- The degree, nature and stability of the control that the administration has.
- The nature of our government's dealings with the other state.
- In marginal cases, the extent of international recognition that it has as the government of the State.
‣ Courts would not recognise or enforce the laws or other public acts of an unrecognised government: Luther v Sagor
[1921]
- However, if a foreign gov't is recognised by the Government of this country the Courts of this country may and must
recognise the sovereignty of that foreign gov't and the validity of its acts.Luther v Sagor [1921]
‣ Recognition, once given, is retroactive in effect from the time that the recognised government established itself, i.e., from
the commencement of its existence: Luther v Sagor [1921]
‣ Consequence of un-recognition of a government
- An unrecognised government lacks grounds to bing a suit in a Court: City of Berne v Bank of England
- An unrecognised government is not entitled to sovereign immunity:The Annette and the Dora
- Agency Theory
- Where a government is not recognised by the court, neither all the new laws and decrees made by the
unrecognised government nor the executive and judicial acts done by the agency appointed by that government
should be regarded as valid: Carl Zeiss case
- Private rights exception
- Courts may, in the interests of justice and common sense, be prepared to recognise and enforce an
unrecognised government’s act “where private rights, or acts of everyday occurrence, or perfunctory acts are
concerned”, provided that public policy allows: Carl Zeiss case
• Relating to commercial obligations or matters of private law between individuals or maters of routine
administration such as registration of births, marriages or death: Caglar v Billingham
• However, Courts will not acknowledge the existence of an unrecognised State if to do so would involve
them in acting inconsistently with the foreign policy or diplomatic stance of the Government: Caglar v
Billingham
Consequences of Recognition of States and Governments:

Full diplomatic relations are established except where the government recognised is de facto.
The recognised government acquires the right to sue in the courts of the recognising state.
The recognising government has a right to the possession of the properties of its predecessor in the territory of the recognising
state.
All acts of the recognised state or government are validated retroactively, preventing the recognising state from passing upon
their legality in its own courts.
Does admission of a government to the United Nations mean recognition by all members?
No.The recognition is only to the extent of the activities of the organisation.
When is recognition terminated?
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Recognition of a regime is terminated when another regime is recognised. For as long as a state continues to meet the
qualifications of statehood, its status cannot be de-recognised.

1. On May 1992, Lord Carrington asked Opinion No.10 (July 4, 1992)
the Commission ‘s opinion in regards In this decision, the Commission ruled that the FRY (Serbia and Montenegro) could not legally be considered a continuation of
of the recognition of the States dissolved in the former SFRY, but was rather a new state. Thus the European Community should not automatically recognise the FRY, but
Yugoslavia issue.
apply to it the same criteria to applied to the recognition of the other post-SFRY states.
1. In January 1991, the Republic of ➡ Recognition is not a prerequisite for the foundation of a State and is purely declaratory in its impact, it is nonetheless a
Somalia bought a cargo of rice for discretionary act that the other States may perform when they choose and in a manner of their own choosing, subject only to
delivery by ship to its capital. compliance with the imperatives of general international law, and particularly those prohibiting the use of force in dealing with
2. By the time the ship arrived offshore, there
was a civil war in progress. other States or guaranteeing the rights of ethnic, religious or linguistic minorities.
3. The captain of the ship decided it was too
dangerous to deliver the cargo. By order of Republic of Somalia v Woodhouse Drake Carey Suisse S.A. [1993]
the Commercial Court in London, it was
sold and the proceeds paid into court. The factors to be taken into account in deciding whether a government exists as the government of a State are:
4. In July 1991, the Djibouti Agreement, (1) Whether it is the constitutional government of the State?
following an international conference of
(2) The degree, nature and stability of the control that the administration has.
interested states and parties, nominated
Mr Mahdi as the interim President of (3) The nature of our government's dealings with the other state.
Somalia. (4) In marginal cases, the extent of international recognition that it has as the government of the State.
5. He appointed Mr Qalib as his Prime
Minister. All except #3 are determined by expert witnesses.
In these proceedings, the question was
whether the proceeds in court that belonged Luther v Sagor [1921] 1 KB 456
to the Republic of Somalia could be paid to
the interim government, i.e., whether the Recognition by Court
interim government is the Government of ➡ If a foreign gov't is recognised by the Government of this country the Courts of this country may and must recognise the
Somalia?
sovereignty of that foreign gov't and the validity of its acts.
On the evidence before the court, the interim
government was not held to be recognised. ➡ If a foreign government, or its sovereignty, is not recognised by the Government of this country, the Courts of this country either
1. In 1920, the defendant company cannot take notice of or recognise such foreign government or its sovereignty.
bought a quantity of wood from the
new Soviet Government of the USSR.
2. The plaintiff Russian company claimed title How far can the recognition extend?
to the wood on the ground that it had
come from a factory in the USSR that had
➡ If the party seeking to dislodge the existing gov't succeeds, and the independence of the gov't it has set up is recognised, then
been owned by it before being nationalised the acts of such gov't from the commencement of its existence are regarded as those of an independent nation.
by a 1919 decree of the Soviet • It is impossible to recognise a gov't and yet claim to exercise jurisdiction over its person or property against its will.
Government.
3. The plaintiff argued that the decree should
not be recognised by an English court, inter De jure government & de facto government
alia, because the Soviet Government had ➡ A de jure gov't is one which ought to possess the powers of sovereignty, though at the time it may be deprived of them.
not been recognised by the UK.
Held, judgment for the UK government ➡ A de facto gov't is one which is really in possession of them, although the possession may be wrongful or precarious.
because of the retroactive effect of
recognition. Carl Zeiss Stiftung v Rayner and Keeler (No.2) [1967] 1 AC 853
1. The governing body of the Carl Zeiss
organisation was set up by the Agency Theory
German Democratic Republic, which ➡ Where a government is not recognised by the court, neither all the new laws and decrees made by the unrecognised
although in effective control of its territory
was not recognised by the UK (which still
government nor the executive and judicial acts done by the agency appointed by that government should be regarded as valid.
considered the Soviet Union as having de
jure authority in that area). Private Rights Exception
Was the governing body recognised by UK
courts? ➡ Courts may, in the interests of justice and common sense, be prepared to recognise and enforce an unrecognised government’s
Held, not recognised. Following the Foreign act “where private rights, or acts of everyday occurrence, or perfunctory acts are concerned”, provided that public policy
Office certificates, the USSR was in de jure allows.
control of East Germany, but that the GDR
was acting as an agent of the USSR – a legal • However, the scope of these exceptions has never been precisely defined.
subordinate.
International Organisations as Subjects of International Law
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In principle, it is established that international organisations possess objective international legal personality. But how is such
legal personality determined? It is determined by several factors including:
• capacity to enter into relations with states and other organisations;
• conclude treaties with them and
• the status it has been given under international law.
• Immunities - note that the basis for the immunities of international organisations is NOT sovereignty, but the need for the
effective exercise of their functions.
United Nation
The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise
of its functions and the fulfilment of its purposes: UN Charter art. 104
Does UN have International personality?
• In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying,
functions and rights which can only be explained on the basis of the possession of a large measure of international
personality and the capacity to operate upon an international plane. It must be acknowledged that the Members by
entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence
required to enable those functions to be effectively discharged: Reparation for Injuries Case
Has UN the right to bring an international claim?
• Whereas a State possesses the totality of international rights and duties recognised by international law, the rights and
duties of the entity such as the Organisation must depend upon its purposes and functions as specified or implied in its
constituent documents and developed in practice: Reparation for Injuries Case
Can UN invoke its international personality against non-member states?
• On this point, the Court's opinion is that fifty States, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into being an entity possessing objective
international personality, and not merely personality recognised by them alone, together with capacity to bring
international claims: Reparation for Injuries Case
1. On September 17, 1948, the Chief Reparation for Injuries Suffered in the Service of the United Nations case (1949)
United Nations was killed, allegedly by Throughout its history, the development of international law has been influenced by the requirements of international life, and
a private gang of terrorists, in the new city the progressive increase in the collective action of States has already given rise to instances of action upon the international
of Jerusalem.
The issue was whether the United Nations, as plane by certain entities which are not States.
an Organisation, has the capacity to bring an
international claim against the responsible de
jure or de factor government? Whether the UN possesses an international personality?
The Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only
be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an
international plane.
➡ It is a subject of international law and capable of possessing international rights and duties, and that it has capacity to
maintain its rights by bringing international claims.
Has the UN got the rights to bring an international claim?

➡ The rights and duties of an entity such as the Organisation must depend upon its purposes and functions as specified or
implied in its constituent documents and developed in practice.
• The functions of the Organisation are of such a character that they could not be effectively discharged if they involved the
concurrent action of fifty-eight or more Foreign Offices, and the Court concludes that the Members have endowed the
Organisation with capacity to bring international claims when necessitated by the discharge of its functions.
Whether the Organisation can recover “the reparation due in respect of the damage caused ..to the victim?
➡ It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an
adequate form.
➡ Under international law, the Organisation must be deemed to have those powers which, though not expressly provided in the
Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.
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Whether the UN can claim against a non-member of the Organisation?

➡ On this point, the Court's opinion is that fifty States, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into being an entity possessing objective international
personality, and not merely personality recognised by them alone, together with capacity to bring international claims
Individuals
Individuals have now come to be recognised as possessing rights and obligations under international law albeit these rights are
limited.
• These international obligations of individuals may include the obligation to comply with regulations of armed conflict, as
well as to not commit international crimes such as aggression, genocide, terrorism, and other crimes against humanity.
• If they do commit these crimes, they are subjected to the jurisdiction of the ICC or the International Criminal Court,
not the ICJ
For the most part, the individual remains an object, not a subject, of international law whose most important characteristic for
international law purposes is his nationality.
• Determine which State may protect him against the extravagances of another;
• Place him within the domestic jurisdiction;
• Decide whether an individual can be benefit from treaty guarantees.
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5. Title to Territory
Modes of Acquisition
Definition of Territory
It is the fixed portion of the surface of the earth inhabited by the people of the state.
It must be permanent and indicated with precision because jurisdiction is determined on the basis of such.
It must also be big enough to provide for the needs of the population, but must not be so extensive as to be difficult to
administer or defend from external aggression.
How is territory acquired or lost?
• Acquired by: discovery and occupation, prescription, cession, subjugation, accretion.
• Lost by: abandonment or dereliction, cession, subjugation, prescription, erosion, revolution, natural cause
‣ Abandonment refers to a situation where a State is held to have surrendered its title, converting the territory to res
nullius, before another State establishes its own title by way of lawful allocation or effective occupation.
- The rule of derelicto requires an intention to abandon: Clipperton Island Case
Components of Territory
The terrestrial domain

• Refers to land mass which may be integrated or dismembered or partly bounded by water, or consist of one whole island.
The maritime and fluvial domain
• Consists of bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified
limit.
• Includes internal waters in the land-locked lakes, rivers, man-made canals within the land mass, and certain bays, gulfs,
and straits, as well as external waters in the territorial sea.
The aerial domain
• The airspace above the terrestrial domain and the maritime and fluvial domain of the state to an unlimited altitude but
not including outer space.
• Every state has complete and exclusive sovereignty over the airspace above its territory. (customary international law)
Discovery & Occupation
Discovery vs Occupation
• Discovery alone is not sufficient to constitute occupation. Discovery only creates an inchoate title, which cannot prevail
over a definite title founded on continuous and peaceful display of sovereignty at the time of the critical date: Island of
Palmas case
Continuous and peaceful display of sovereignty
• Sovereignty based on peaceful and continuous display of state authority over a territory prevails over a title of acquisition
of sovereignty not followed by actual display of state authority: Island of Palmas case
‣ Elements of a peaceful and continuous display of State authority: Eastern Greenland case
- The intention and will to act as sovereign; and: Eastern Greenland Case
• Estoppel and acquiescence may help to determine the sovereignty: Eastern Greenland Case
• Whether the alleged State has treated its discovery as possession or merely protection: Western Sahara
Case
- Some actual exercise or display of such authority.
✓ Actual exercise or display of a territorial sovereignty involves: Island of Palmas case
- the exclusive right to display the activities of a State, and
• See more in Minquiers and Ecrehos Case
- the corollary obligation to protect within the territory,
- the rights of other States, in particular their right to integrity and inviolability, together with
- the rights each State may claim for its nationals in foreign territory
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✓ If the area is thinly populated or unsettled, little actual exercise of sovereign rights is sufficient: Eastern
Greenland Case
- What is decisive is the intent of the country.
‣ Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by
some other Power, i.e., who has the stronger claim: Eastern Greenland Case
- Although acquiescence is not a means of acquiring title, it is a proof of a better claim: Eastern Greenland Case
Critical date
• Critical date means the date when the dispute became “crystallised”: Minquiers and Ecrehos case
• All the events occurred after the critical date will not be considered in deciding territorial sovereignty: Island of Palmas
case; Pulou Ligiton and Pulou Sipidon (2002)
Terra nullius
• If the island is uninhabited, physical occupation is not necessary. Open declaration is sufficient: Clipperton Island case
• Terra nullius means a territory belonging to no one. The following factors may be a factor that the area was not terra
nullius:Western Sahara Case
‣ State practice indicates that a territory inhabited by tribes having a socio-political organisation;
- The taxation system
- Whether there is a nomadic nature of the tribe?
‣ Lack of control by the alleged State
- Control cannot be inferred from the mere allegiance of some (not all) of the people in the area.
‣ Lack of common recognition by the local people.
- Whether the local people recognised the institution created by the alleged country?
- Whether the local people recognised the leadership outside their local leader?
- Silence may amount to acquiescence: Pefra Branca case
‣ The alleged State never treated its case as occupation, but merely “protection”, i.e., the State lacked an intention to
possess.
1. The island of Palmas is a single, Island of Palmas Case

isolated island found between Netherlands v U.S. (1928)
Mindanao and Greenwich.
Based on the Intertemporal Law, the act which creates a right is subjected to the law in force at the time the right arises. But
2. Both US and Netherlands claim territorial
sovereignty over the island. the existence if a right must follow the conditions required by the evolution of law -- the 19th century IL which requires effective
3. US bases its title by cession from the occupation to constitute territorial sovereignty.
Spaniards, claiming that Spain acquired
title by discovery in the 1500s.
4. The Netherlands claims that the Dutch Discovery alone is not sufficient.
East Indies possessed and exercised rights ➡ It merely gives the claimant an inchoate title to the territory and requires the discovery to be coupled with effective
of sovereignty through conventions and
agreements with the natives (Treaty of occupation.
Suzerainty). ➡ Effective occupation means a continuous and peaceful display of territorial sovereignty.
The Netherlands has proved the exercise of
some acts of State authority and the ➡ Can be embodied in:
existence of external signs of authority (flags, • taxation
coats of arms).These facts at least constitute • provision of defence
a beginning of establishment of sovereignty by
continuous and peaceful display of state • Spain never protested the exercise of territorial rights by Netherlands
authority, or a commencement of occupation ➡ An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty.
of an island not yet forming a part of the
territory of a state; and such a state of things
would create in favour of the Netherlands an Critical Date
inchoate title for completing the conditions of Regardless of what parties will do (subsequent events, etc.), the court will freeze the period of the controversy to the date when
sovereignty. Such inchoate title, based on
display of state authority, would prevail over
the controversy became ripe for adjudication. And all the events after such date will be ignored.
an inchoate title derived from discovery, • Critical date in this case -- Treaty of Paris (1898)
especially if this latter title has been left for a • The court held that there was indeed cession through the treaty of Paris. However, Spain could not transfer to US more
very long time without completion by
occupation; and it would equally prevail over rights than she herself possessed; and Spain did not have the island based on discovery. The island was only reported to
any claim which, in equity, might be deduced have been seen but there was no sign of possession or administration by Spain or any mention of a contract with the
from the notion of contiguity. natives.
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• United States could have won the case if they had shown that at the time there was no separation of church and state.
By showing that there were priests, civil registrar, collection of tribunes, etc., they would have shown Spanish occupation of
the islands.
Correlative duty with regards territorial sovereignty.

➡ Territorial Sovereignty involves the exclusive right to display the activities of a State. This right has as corollary a duty: the
obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace
and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its
territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty.
Principle of Continuity
Presumption of sovereignty in favour of a particular state wherein islands relatively close to the shores of a state belonged to
them by virtue of their geographical proximity to each other.
• In this case, the tribunal disregarded this because: no precedent, so uncertain and uncontested, contradictory opinions, lacking
in precision, and arbitrary results
• It is impossible to show the existence of a rule of positive international law to the effect that islands situated outside
territorial waters should belong to the State whose territory forms the terra firma (nearest continent or island of
considerable size).
1. Norway, in its proclamation of July Eastern Greenland Case

10, 1931, said that it is taking Denmark v Norway (1933)
possession of which is “officially
confirmed”, and which is “placed under
➡ If the area is thinly populated or unsettled, little actual exercise of sovereign rights is sufficient.
Norwegian sovereignty” of Elrik Raudes
Land in Eastern Greenland. • Although both sides were able to present evidence establishing their sovereignty over the area, such as expeditions, granting of
2. This proclamation was criticised for its
failure to specify the limits of the concessions, legislation, etc., what won it for Denmark was estoppel or acquiescence because of the Ihlen Declaration.
occupation but it must have been intended ➡ Although acquiescence is not a means of acquiring title, it is a proof of a better claim.
that on the eastern side of the sea and the • The Minister of Foreign Affairs of Norway and Sweden (Sweden had control over Norway during this time), wrote to
western side the “inland ice” should
constitute the limits of the area occupied. the British Minister in Stockholm that the King of Sweden and Norway agreed to renounce in favour of the Kingdom
3. This 1931 Proclamation of Norway of Denmark their claims over Iceland, Greenland, and the Faroe Islands.
triggered the controversy between
Denmark and Norway.
• A second series of undertakings by Norway, recognising Danish sovereignty over Greenland, is afforded by various
4. Denmark claims that the sovereignty which bilateral agreements concluded by Norway with Denmark, and by various multilateral agreements to which both
it enjoys over Greenland has existed for a Denmark and Norway were contracting Parties, in which Greenland has been described as a Danish colony or as
long, time, has been continuously and
peacefully exercised, and until the present forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the
dispute, has not been contested by any agreement.
Power. • Also, Denmark maintained that the promise by in 1919 by M. Ihlen, the Norwegian Minister for Foreign affairs,
5. Also, Denmark claims that Norway, by
treaty or otherwise herself recognised speaking on behalf of his Government debarred Norway from proceeding to any occupation of territory in Greenland
Danish sovereignty over Greenland as a even if she had not by other acts recognised an existing Danish sovereignty there.
whole and therefore cannot dispute it.
6. Norway claims that Denmark possessed
no sovereignty over the area which Norway • There is equal preponderance of evidence presented by both states as to their occupation of a certain portion of Greenland.
occupied on July 10, 1931, and that at the However, Norway’s possession was not in the concept of a title, i.e. there was no animus possidendi, which is one of the 2
time of the occupation the area was terra
nullius. requirements of sovereignty.
Held, Denmark won. ➡ It did not have the intent to possess in behalf of a sovereign.
• Remember that it is not only physical possession that is important.There must also be intent.
Constructive Possession
➡ A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued
display of authority, involves two elements each of which must be shown to exist:
• the intention and will to act as sovereign, and
• some actual exercise or display of such authority.
➡ Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to
sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power.
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• In most of the cases involving claims to territorial sovereignty which have come before an international tribunal, there
have been two competing claims to the sovereignty, and the tribunal has had to decide which of the two is the stronger.
• One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than
Denmark to the sovereignty over Greenland. Indeed, up till 1931, no Power disputed the Danish claim to sovereignty.
Loss of sovereignty by conquest

• Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of
one of them sovereignty over territory passes from the loser to the victorious State. The principle does not apply in a case
where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population.
Nor is the fact of "conquest" established. It is known now that the settlements must have disappeared at an early date, but at
the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of
the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers.
Res nullius (terra nullius)
1. Clipperton island is terra nullius Clipperton Island Case

considering the territory was France v Mexico (1931)
uninhabited and without administration.
Sovereignty over the island was declared by
➡ Generally speaking, the actual taking of possession is a necessary condition of occupation.
France from the moment its navy members ➡ Exception that physical occupation is not required where:
landed on the island in 1858 and was i. territory is terra nullius;
published in a Honolulu journal,The
Polynesian in the same year. ii. at the time the occupying state makes its appearance there; and
Held, the sovereignty over Clipperton Island iii. taking of possession and intent to possess is shown by a public declaration of sovereignty.
belongs to France, dating from November 17, ➡ The rule of derelicto requires an intention to abandon.
1858.
1. Both UK and France seek to establish Minquiers and Ecrehos Case

sovereignty over the Minquiers Group France v U.K. (1953)
and Ecrehos Group of islets and rocks by What is of decisive importance is not indirect presumptions deduced from events in the Middle Ages, but the evidence which
citing ancient title and treaties.
Held, U.K. won. relates directly to the possession of the two islands.
➡ “Ordinary local administration” specifically referring to:

• Jersey courts exercising criminal jurisdiction for nearly 100 years;
• Jersey law requires the holding of inquests on corpses found in the area;
• Houses built in the area were assessed for the levying of taxes;
• Licensing of fishing boats;
• Real estate contracts relating to property in the area were registered in the public registry of deeds;
• Jersey customs authorities established a custom house for the purpose of a census.
Western Sahara Case (1975)8
Prescription
Prescription refers to the removal of defects in a putative title arising from usurpation of another’s sovereignty by the
acquiescence of the former sovereignty.
Elements of prescription: Kasikili / Sedudu Island case
• The possession of the State must be done in the name of the sovereignty. (be exercised a titre de souverain)
‣ Silence of the local reaction may amount to acquiescence: Pefra Branca case
• The possession must be peaceful and uninterrupted.
• The possession must be public.
• The possession must endure for a certain length of time.
8 Notes: 4_Personality, Statehood, Recognition, page 5.

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Conquest
The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the
provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the
threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognised as legal: 1970
Friendly Relations Declaration.
• So the law of conquest has declined in significance to the point where it provides, under the doctrine of intertemporal
law, justification only for the titles acquired before the force used to obtain them was declared illegal by customary
international law.
Whether a State that acts in self-defence to repel armed force used against it is justifiable?
• Force used in self-defence must be proportionate to the threat of immediate danger: Jennings
➡ As a consequence, the establishment by Japan of the “puppet state” of “Manchukuo” is not recognised: The Stimson
Doctrine of Non-recognition.
Cession
Cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State.9
• To constitute a cession it must be intended that sovereignty will pass.
• Since certain parts of State territory, such as rivers and the maritime belt, are inalienable appurtenances of the land, they
cannot be ceded without a piece of land.
Naturally, the transferee cannot receive any greater rights than those possessed by the transferor: nemo dat quod non habet.
In the case where a territorial regime is established by a treaty, this settlement achieves a permanence which the treaty itself
does not necessarily enjoy
➡ The continued existence of that regime is not dependent upon the continuing life of the treaty under which the regime is
agreed:Territorial and Maritime Dispute (Nicaragua v Colombia)
Accretion and Avulsion
A State may also attain sovereignty over new land as a result of natural forces.
• This may happen slowly (accretion), for example, by the gradual movement of a river bed or
• Suddenly (avulsion), for example, by the creation of an island in territorial waters by volcanic action.
Specific Areas
Antarctica
Official claims to sectors of Antarctica have been made by Argentina, Australia, Chile, France, New Zealand, Norway and U.K.
Governed by Antarctic Treaty 195910.
• The demilitarised article: art.1
• The “nuclear free”: art 5
• The provision for periodic meetings: art 9.
The Arctic
Two of the States bordering the Arctic Ocean: Canada and the Russian Federation.
Outer Space
Governed by Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the
Moon and other Celestial Bodies 196711.
• Territory in outer space, is not subject to sovereignty: art. 2
9 Oppenheim’s International law, 9th ed. 1992.

10 Case book, page 198.
11 Case book, page 210.
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6. Law of Treaties
General
Unless otherwise provided, the law in this chapter refers to VCLT.
Vienna Convention on the Law of Treaties (VCLT)– guide for treaty law
Entered into force on 27 January 1980.
It is a compound of codification and of progressive development of customary international law.
Does not deal with
• treaties between states and organisations, or between two or more organisations
• state succession to treaties
• the effect of armed conflicts on treaties
Definition of treaties
Article 2(1)(a) VCLT
It is a written agreement between States, governed by international law, and embodied in a single instrument or a
series of related instruments, in whatever designation it may be given.
Elements of treaties
• Concluded between States
• Currently, the VCLT do not extend to treaties to which public international organisations are parties.
• Article 3, however, recognises that at customary internal law, entities other than states may have the international
personality to allow them to make treaties.
1. An agreement between UK and • Individuals have never been recognised as having the capacity to make treaties: Anglo-Iranian Oil Company case
Iranian oil company. • Do not have the right parties, have government of Iran on the one hand and oil company on the other
2. Whether the international court had the
jurisdiction? • In written form
3. If the agreement is regarded as a treaty, • Is there such a thing as an oral treaty?
then international court would have • YES, however such treaties would not come within the contemplation of the VCLT and therefore would not be
jurisdiction.
4. Therefore, the issue was whether the governed by the VCLT. There is really no required form, but the treaty, to come under the definition of the VCLT,
agreement could be regarded as a treaty? must at least be in writing, agreed to by the States, and governed by international law.
Held, the investment was not a treaty, • Governed by international law
individuals could not make treaties.
Accordingly, ICJ did not have jurisdiction. • Intention to create legal relations.
• Not governed by the local law of one of the parties or by a private law system.
• Embodied in a single instrument or a series of related instruments
Treaty v. Contract
• Nature of the parties
• Nature of the agreement itself – what law should govern
• Treaty do not require consideration. For example, territory can be ceded by treaty without consideration.
Requisite to a valid treaty
Treaty-making capacity
A treaty to be valid must be entered into by parties with treaty making capacity.
All states have full treaty-making capacity unless limited by reason of their status and previous self-imposed inhibitions.
The United Nations and its organs (i.e. the Security Council, the Economic and Social Council) and international bodies like the
World Health Organisation may enter into treaties.
Authorised representative
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6. Law of Treaties
It is for municipal law to determine which organ of the state shall be empowered to enter into treaties in its behalf. (i.e. The
Constitution authorises the President to make treaties subject to a concurrence of two-thirds of all the members of the
Senate).
General Rule: A State is not bound by a treaty made in its behalf by an organ or authority not competent under the law to
conclude the treaty unless that State afterwards confirms the treaty: Article 8.
• Exception: A state may be responsible for an injury resulting to another state for reasonable reliance by the latter upon
the misrepresentation of the former.12
Freedom to consent
Fraud or mistake will invalidate a treaty as it would an ordinary contract.
Lawful Subject Matter

When the subject matter of a treaty is illegal, it is rendered null and void.
• Example: The Treaty of Tordesillas of 1949 is invalid for illegality of the subject matter insofar as it sought to divide
between Spain and Portugal parts of the Atlantic, Pacific, and Indian Oceans which are open seas.
Compliance with the Constitutional Processes

• Ratification processes are governed by municipal law. Non-compliance with this requisite will prevent the enforcement of the
treaty even if already signed by the negotiators.
Making of Treaties
Steps in the making of treaties:

• Negotiation --> Authentication of Text --> Consent to be bound --> Reservations (if any) --> Entry into Force
Step One: Negotiation

Negotiations are usually done through foreign ministries.
Negotiators have the power to negotiate, naturally, a treaty entered into by one who is not authorised to do so is invalid and
without effect.
Two elements must be present for someone to be considered with full powers to represent a state: Article 7(1)
(a) He produces appropriate full powers
(b) The practice of States so provide for evidence that there is an intention to consider that person a representative of the
State.
Who are empowered to enter into treaties as representatives of their States? Article 7(2)
(a) Heads of States, Heads of Government and Ministers of Foreign Affairs
(b) Heads of diplomatic missions
(c) Accredited representatives of States to international conferences or to an international organisation.
Step Two: Authentication

This is evidenced by the signing of the document.
The manner by which such authentication is primarily guided by the procedures set forth in the treaty itself. If not followed,
then the signature ad referendum or initialing of representatives will serve as sufficient authentication: Article 10.
Step Three: Consent to be bound

There are several means of expressing consent: signing, ratification, acceptance, approval or accession, exchange of instruments,
or other means if so agreed: Article 11.
Signature
• The act of signing will have the effect of binding a state to the treaty when the treaty so provides, or when it is the
intention of the parties that the signature would have that effect, or when the parties agree that the signature would
have that effect: Article 12
12 Harvard Research on International Law cited by Isagani Cruz

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6. Law of Treaties
Exchange of Instruments
• The exchange of instruments will have the effect of binding a state to the treaty when the instruments themselves
provide for such effect, or when it is otherwise established that the States agreed that the exchange would produce that
effect: Article 13.
Ratification, approval or acceptance
• The ratification, approval or acceptance will have the effect of binding a state to a treaty when the treaty so provides, the
States agreed to give it that effect, the representative of the State signed it subject to ratification, or the States so
intended: (ratification in Article 14).
• Ratification involves two distinct procedural acts:
• an internal act of approval
• the international procedure which brings a treaty into force by a formal exchange or deposit of instruments of
ratification.
✓ An important act involving consent to be bound.
✓ Depends on the intention of the parties.
✓ The act of deposit by itself establishes the legal nexus between the depositing State and other contracting
States.
• Where a treaty is expressed to be open to signature ‘subject to acceptance’, this is equivalent to ‘subject to ratification’.
Accession: Article 15
• This applies to States that did not participate in the initial negotiations.
• Accession may occur before or after the treaty has entered into force.
• Accession binds a state when the treaty so provides, when the negotiating parties have agreed that such consent may be
expressed by accession, or when all the subsequent parties have agreed that consent is expressed by accession.
Obligation not to defeat the object and purpose of a treaty prior to its entry into force: Article 18
• A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its
consent to be bound but the treaty has not yet come into force, i.e., has signed, exchanged the documents, and the treaty
is subject to ratification, acceptance or approval, etc.
Step Four: Reservation
Article 19
Generally, States may make reservations. EXCEPT WHEN:
(1) Reservation is prohibited by the treaty.
(2) The treaty provides for only specified reservations.
(3) When the reservation would be contrary to the object and purpose of the treaty.
Article 20
(1) A reservation expressly authorised by a treaty does not need subsequent acceptance by the other State-parties.
(2) A reservation requires the acceptance of all the parties when it appears that the application of the treaty is an essential
condition of the consent of each State-party to be bound by the treaty.
(3) When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires
the acceptance of the competent organ of that organisation.
(4) In cases not falling within the preceding paragraphs and unless the treaty otherwise provides:
(a) acceptance by another contracting State of the reserving State’s reservation makes the reserving State a party to that treaty
in relation to the accepting State.
(b) An objection by another contracting State does not preclude entry into force of that treaty as between the reserving State and
the objecting State, unless a contrary intention is definitely expressed by the objecting State.
(c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one
other contracting State has accepted the reservation.
(5) A reservation is deemed accepted by a State if it did not raise any objection to the reservation by the end of the period of 12
months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty,
whichever is later.
A reservation is a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to the State: Article 2(d)
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6. Law of Treaties
A reservation is different from an interpretative declaration. The latter refers merely to the expression or the interpretation of
the State of the treaty, it does not in any way constitute derogation from the treaty: Belilos v Switzerland
• The word “declaration” is not decisive, which is truly relevant is whether there is any condition casted upon the
acceptance of the treaty.
The problems tackled in arts 19-23 concern only multilateral treaties. In the case of bilateral treaty, a proposed reservation is,
in effect, a counter offer which the other party can accept or reject.
In terms of admissibility of reservations, ILC is in favour of the ‘compatibility rule’, that is to say, ‘a State which has made ... a
reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as
being a party to the Convention if the reservation is compatible with the object and purpose of the Convention’: Armed
Activities (New Application: 2002) case
Legal effects of reservation: Article 21
1. A reservation established with regard to another party:
(a) modifies for the reserving state in its relations with that other party the provisions of the treaty
(b) modifies those provisions to the same extent for that other party in relation to the reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.
3. When a State objecting to a reservation does not oppose the treaty’s entry into force between itself and the reserving
State, the provisions to which the reservation relates do not apply as between two States to the extent of the reservation.
Withdrawal of reservations and of objections: Article 22
1. Withdrawal of a reservation may be made at any time, and the consent of the accepting State is not required.
2. Withdrawal of an objection may be made at any time.
3. As to effectivity:
- The withdrawal of a reservation becomes operative in relation to another contracting State only when it receives notice
thereof (3)(a)
- The withdrawal of an objection becomes operative only when notice thereof has been received by the State which
formulated the reservation: (3)(b)
Form and Procedure of Reservation: Article 23
• Reservations must be in writing, and formally confirmed by the reserving State: (1)
• The acceptance of the reservation DOES NOT itself require confirmation: (3)
• Withdrawal of a reservation or objection must be in writing (4)
1. The applicant claimed that she had Belilos v Switzerland (1988)

not been given a fair trial in Difference between declaration & reservation
accordance with art. 6, European
Convention on Human Rights when she • A “mere interpretative declaration”: the declarant seeks only to offer an interpretation of the treaty that may be found
was convicted of a criminal offence by a subsequently to be incorrect --> declaration
municipal Police Board in Switzerland. • A “qualified interpretative declaration”: the declarant purports to make its acceptance of the provision in question conditional
2. Switzerland entered a preliminary
objection to the effect that the case fell upon acquiescence in that interpretation --> reservation
within the scope of an “interpretative Effect of reservation
declaration” concerning art. 6 which it had • The safe course for a state that is opposed to a reservation is formally to object to it.
made upon ratification and which, in its
view, was a valid reservation under art. 64 Effect of invalidity
of the Convention. ➡ The reserving State is fully bound by the Convention without the benefit of the reservation.
Held, despite its title “interpretative
declaration”, it was a reservation. However,
the reservation is invalid according to art. 64. Step Five: Entry into Force
Judgment for the applicant. A treaty enters into force on the date the parties agreed to. If there is no such agreement, then the treaty enters into force on
the date of consent: Article 24
Function of the provisions of a treaty
• The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound
by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters
arising necessarily before the entry into force of the treaty: Article 24(4)
Difference between “contracting State” & “party”:VCLT
• “Contracting State” means “a State which has consented to be bound by the treaty, whether or not the treaty has entered
into force: Article 2(1)(f)
• “Party” means “a State which has consented to be bound by the treaty and for which the treaty is in force: Article 2(1)(g)
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6. Law of Treaties
A treaty may be provisionally applied when the treaty itself provides, or when the negotiating parties so agree: Article 25
Application of Treaties
Treaties must be complied with in good faith, pursuant to the principle of pacta sunt servanda.
When there is conflict between Municipal Law and International Law
• A State may not invoke its municipal law as a justification for not complying with its treaty obligations: Article 27, and
• Non-compliance with municipal law rules on the competence to make treaties may not generally be invoked to invalidate
to its consent to a treaty: Article 46; Eastern Greenland case
Treaty does not take effect retrospectively, but the act or fact in question must cease to exist before the date of the entry into
force of the treaty, i.e., if the act or fact is a continuing situation, treaty will be effective: De Becker case
The relation of treaties between the same parties and with overlapping provisions is primarily a matter of interpretation, aided
by presumptions: Article 30.
• It is presumed that a later treaty prevails over an earlier treaty concerning the same subject matter.
• However, a treaty may provide expressly that it is to prevail over subsequent incompatible treaties.
• Article 103 of the UN Charter provides that in the case of conflict, obligations under the Charter prevail over obligations
arising under any other international agreements.
Unless otherwise provided, the treaty applies to the entire territory of the State-party: Article 29
1. The appellant alleged a violation by De Becker (1958-59)13

Belgium of art.10 of the European • Though the Convention, according to the generally recognised rule of international law, did not take effect retrospectively, it
Convention on Human Rights. appears that the Applicant finds himself in a continuing situation in respect of which he claims to be the victim of a violation
2. He had been convicted in 1947 of a
criminal offence and sentenced to life of the right to freedom of expression guaranteed by Article 10 of the Convention and that the Application, insofar as it
imprisonment and to the forfeiture for life concerns this continuing situation extending after the Convention was entered into force (June 14, 1955), is consequently not
of certain civil rights in accordance with
the Belgian Penal Code (art.123 sexies)
inadmissible ratione temporis.
including the right to participate in the
running of a newspaper.
Judgment for the appellant.The European Interpretation of Treaties
Commission of Human Rights rejected the
argument pub by Belgium that the application
was inadmissible because the sentence had
been imposed before Belgium became a party
to the Convention. Article 31 General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and
annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Treaties are to be interpreted taking into consideration three elements: Article 31

• the ordinary meaning of the words (1)
• the purpose of the treaty, and (1)
• the special meaning given to it by parties. (4)
Interpretation of Article 31 -- Two approaches
13 Cases and Materials on International Law, page 671.

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6. Law of Treaties
• Principle of ordinary meaning has two corollaries and one presumption

• Principle of integration
• The meaning must emerge in the context of the treat as a whole
• including the text, its preamble and annexes, and any agreement or instrument related to the treaty and
drawn up in connection with its conclusion: Article 31(2)
• Principle of contemporaneity
• The language of the treaty must be interpreted in the light of the rules of general international law in force at
the time of its conclusion, and also in the light of the contemporaneous meaning of terms: Land and Maritime
Boundary between Cameroon and Nigeria case
• Involves a presumption
• A meaning other than the ordinary meaning may be established: Article 31(4);
• but the proponent of the special meaning has a burden of proof: Eastern Greenland case
• Principle of effectiveness: ut res magis valeat quam pereat
• When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have
appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation
should be adopted.
When there are ambiguities or the interpretation according to article 31 leads to a result which is manifestly absurd or
unreasonable, recourse may be had to supplementary sources: Article 32
• including the preparatory work of the treaty and the circumstances of its conclusion --> the record of the drafting a
treaty
• Only a “supplementary aid”, not equally with the text in the treaty itself.
★ The preparatory work of a treaty may not be admitted in evidence if not all of the parties to the case had participated in
the drafting of the treaty:Territorial Jurisdiction of the International Commission of the River Order case
When a treaty is entered into in two or more languages, the general rule is that the treaties are equally authoritative in all
languages, except when the parties agree to making a particular text prevail: Article 33.
• The terms are presumed to be of the same meaning: (3)
• But if a difference arises, then the meaning that will best reconcile the both, having regard to the object and purpose
of the treaty, shall be adopted: (4)
Obligations and Rights for Third States
General Rule:Treaties are binding only on the contracting parties.

• A treaty does not create either obligations or rights for a third State without its consent: Article 34
Exception:Third states may be validly held to the observance of or benefit from the provisions of a treaty.
• The treaty may be merely a formal expression of customary international law which is enforceable in all civilised states:
Article 38
• A treaty may expressly extend benefit to non-signatory States (i.e. the Hay- Pauncefote Treaty of 1901).
Amendment and Modification of Treaties
Amendment
Formal revision done with the participation of all the parties to the treaty.
Rules on amending treaties: Article 40
• Proposal to amend must be made known to all the contracting States.
‣ These States shall take part in the decision-making, negotiation and conclusion of any agreement for the
amendment of the treaty.
• Parties to the pre-amendment treaty are entitled to be parties to the amended treaty.
• If the State is a party to the pre-amendment treaty but is no a party to the amended treaty, then Article 30 par. 4(b)
governs:
‣ As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both
States are parties governs their mutual rights and obligations --> i.e, the pre-amendment treaty prevails.
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6. Law of Treaties
• Any State which becomes party to a treaty after the treaty is amended shall:
➡ be considered a party to the amended treaty; and
➡ be considered a party to the unamended treaty in relation to any party not bound by the amended treaty.
Modification
Formal amendment involving some of the parties, not all.
Rules on modifying treaties: Article 41
• A treaty can only be modified when:
‣ Modification is provided for by the treaty
‣ Modification is not prohibited by the treaty
‣ Modification does not affect the rights and obligations of other States
‣ Modification is not incompatible with the object and purpose of the treaty.
Invalidity of Treaties
If a treaty is established to be invalid, then the treaty is void: Article 69

Grounds for invalidating a treaty are:
Error: Article 48
• Elements:
- Relates to fact
- The facts or situation was assumed by the State to exist at the time when the treaty was concluded
- The error formed an essential basis of its consent to be bound by the treaty.
• Exceptions: cannot invalid a treaty by virtue of an error ‘if the State in question contributed by its own conduct to the
error or the error could have been avoided, or if the circumstances were such as to put that State on notice of a possible
error (i.e., the error was reasonable foreseeable): Article 48(2)
Fraud conduct: Article 49
• The provision concerns the situation where a State has been introduced to conclude a treaty by the fraudulent conduct of
another negotiating States.
• Fraudulent misrepresentation of a material fact inducing an essential error is dealt with by the provision relating to error.
Corruption of the State’ s representative: Article 50
Coercion
• Coercion means “threat or use of force in violation of the principles of international law embodied in the Charter of the
United Nations”: Article 52
• Two types of coercion:
‣ Coercion of a representative of a State personally: Article 51
• The concept of coercion extends to blackmailing threats and threats against the representative’s family.
‣ Coercion of a State: Article 2(4) of the UN Charter, and also Article 52 VCLT
The treaty is a violation of jus cogens: Article 53
• At the time of its conclusion, the treaty conflicted with a peremptory norm of general international law.
• A peremptory norm of general international law is a norm accepted and recognised by the international community
of States as a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.
• A treaty becomes void if it conflicts with a peremptory norm of general international law established after the treaty
comes into force: Article 64
• Example includes:
• a treaty contemplating an unlawful use of force contrary to the principles of the Charter;
• a treaty contemplating the performance of any other act criminal under international law, and
• a treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy or genocide,
• Others include the prohibition of racial discrimination and apartheid, torture, the basic rules of international
humanitarian law, and the principle of self-determination.
Generally, a State may invoke the aforesaid grounds to invalidate a treaty. EXCEPT when the State expressly agrees that it
remains effective, or when the state acquiesces.
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6. Law of Treaties
Defects of authority: Article 47

If the consent made by the authority in regards of a particular treaty has been subject to a specific restriction, omission to
observe the restriction may not be invoked as a ground of invalidity unless the restriction was previously notified to the other
negotiating states.
Termination of Treaties
Termination occurs: Article 54

In conformity with the provisions of the treaty; or (a)
At any time by consent of all the parties after consultation with the other contracting States. (b)
Where there is an incompatibility between a previous treaty and a later treaty relating to the same subject-matter, the
previous treaty shall be considered as terminated if all the parties intend to do so: Article 59.
Treaties are terminated by:

Lapse of definite period provided for by the treaty
Purpose for which it was established has already been achieved
Denunciation and termination by agreement: Article 54.
Material Breach: Article 60
• A breach of a treaty, however serious, does not ipso facto put an end to the treaty.
• Only a material, as opposed to any, breach justifies the termination or suspension of a treaty:Tacna-Afica Arbitration
➡ In order to constitute material breach, it must at least be an act in repudiation of a treaty, or a violation of a treaty
provision essential to the accomplishment of the object or purpose of the treaty: (3)
• Termination is not available for those “provisions relating to the protection of the human person contained in treaties of a
humanitarian character”: (5)
• Although art. 60 is available only in the case of a material breach, the general customary international law of
countermeasures permits proportionate retaliation in the case of minor breach of a treaty.
Impossibility of performance: Article 61
• In order to constitute impossibility of performance, the impossibility must result from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty: (1)
➡ If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treat, not
termination.
• Situation may include:
• the submergence of an island, the drying up of a river, or a destruction of a railway, by an earthquake, or other
disaster.
• The effect of impossibility is not automatic, and a party must invoke the ground for termination.(1)
Every treaty in force is binding upon the
parties to it and must be performed by • If the impossibility of performance results from the party’s own breach of an obligation flowing from the treaty, it cannot
them in good faith. be relied upon to terminate the treaty.(2)
A tacit condition attached to all treaties Fundamental change of circumstances: Rebus Sic Stantibus: Article 62
to the effect that they will no longer be
binding as soon as the state of facts and • Elements: (1)(2)
conditions upon which they were based • Not foreseeable at the time of the conclusion of a treaty: Gabcikovo-Nagymaros Project case
changes to a substantial degree
1. UK and Iceland bring this case before • Changes is so fundamental so as to violate the essential basis of the consent of the parties: Fisheries Jurisdiction
the Court in order to settle their Case; Gabcikovo-Nagymaros Project case
dispute regarding the extension of Iceland’s • The extent of obligations still to be performed under the treaty has been transformed radically;
exclusive fisheries jurisdiction from 12
nautical miles to 50 nautical miles. • There is no boundary established in the treaty
2. Iceland previously entered into an • The fundamental change is not caused by the plaintiff party itself.
agreement (through an Exchange of
Notes) with UK NOT to extend its fisheries
• Basically, it can be said that the general rule is pacta sunt servanda and rebus sic statibus is one exception.
jurisdiction, but it nevertheless did, thereby • Suspension is also available where a treaty can be terminated by virtue of fundamental change of circumstances: (3)
violating its obligation to UK.
3. Iceland claims change circumstances
include those resulting from exploitation of
Fisheries Jurisdiction Case (Jurisdiction)
fisheries and in absence to an agreement (United Kingdom v Iceland) (1974)
fishing was open to all in the high seas but
not territorial waters.
Whether or not the Court had jurisdiction 39
(this is the primary issue, but the relevant
part of rebus sic stantibus is discussed in the
ratio)
The Court ruled that it had jurisdiction.

lOMoARcPSD|3142874
6. Law of Treaties
➡ Article 62 constituted customary international law. In order for a State to validly invoke rebus sic stantibus, the change must
have been fundamental. The change should have resulted in a radical transformation of the extent of the obligations still to be
performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the
performance of something essentially different from that originally undertaken.
➡ Court concludes this is not the right kind of change of circumstance because:
(a) Exploitation of fishing is not the type of change relevant because it does not change the nature of the specific obligation,
i.e., it cannot be said to have transformed the extent of the jurisdictional obligation imposed in the agreement with the
UK.
(b) There is no radical transformation of the extent of obligations still to be performed
Gabcikovo-Nagymaros Project case

1. Slovakia succeeds Czechoslovakia (捷 (Hungary v. Slovakia) (1997)
克斯洛伐克) in the 1977 Treaty In order to justify its unilateral termination of the said treaty, Hungary invokes the grounds of:
entered into between Czechoslovakia and (1) state of necessity;
Hungary regarding the building of dams on
the Danube River. (2) impossibility of performance; and
2. Hungary suspended the construction due (3) fundamental change of circumstances. All of which have been deemed unmeritorious by the Court.
to environmental concerns, to which
Czechoslovakia responded by carrying out
unilateral measures. ➡ On the state of necessity, the Court ruled that this ground is not a valid ground for the termination of a treaty, at most, it could
3. The treaty does not contain any provision be a justification for failure to implement treaty provisions, but NOT termination thereof.
regarding its termination.
4. In May 1992, Hungary had notified its ➡ On the impossibility of performance, the Court ruled that Hungary cannot invoke this ground as if Slovakia’s breach is only the
termination of the 1977 Treaty, citing the result of Hungary’s corollary breach of its obligations. The investment was no longer possible because Hungary itself did not
unilateral measures taken by carry out the works.
Czechoslovakia as being in breach of the
1977 Treaty. ➡ Article 61, paragraph 2, of the Vienna Convention expressly provides that impossibility of performance may not be invoked
5. Hungary and Slovakia referred the case to for the termination of a treaty by a party to that treaty when it results from the party’s own breach of an obligation
the ICJ by special agreement, asking the
Court to rule on the legality of Hungary’s
flowing from that treaty.
suspension and abandonment of work on ➡ On fundamental change of circumstances, the Court held that the changed circumstances invoked by Hungary (changes
the project; Czechoslovakia’s adoption of political in nature, progress of environmental knowledge, etc.) are not of such nature so as to warrant a termination of the
the unilateral measures and Hungary’s
termination of the treaty. treaty.
Slovakia won. ➡ In the Court’s view, the prevalent political conditions were thus not so closely linked to the object and purpose of the
Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent
of the obligations still to be performed.
➡ A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of
the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty.
War between contracting parties

No provision in the Convention specifically available to answer this question
Techt v. Hughes – Court of Appeals, NY
• Allowed an enemy alien to inherit property despite the existence of an armed conflict between Austria-Hungary
• Rule is a case by case assessment to see if the treaty is necessarily suspended by war
• Humanitarian treaties would always apply in an armed conflict situation
General Rule: outbreak of armed conflict does not suspend or terminate the treaty between parties of the armed conflict.
• However, in state practice, many types of treaty are regarded as at least suspended in time of war, and war conditions
may lead to termination of treaties on grounds of impossibility or fundamental change of circumstances.
Notice Requirement
A party shall not give less than twelve months’ notice of its intention to denounce or withdraw from a treaty: Article 56
Procedure of Termination: Article 65

A party invoking any of the grounds for termination must notify all the parties: (1)
• The notification must be in writing: Article 67(1)
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6. Law of Treaties
If after the expiry of the period, which shall not be less than three months after the receipt of the notification, no State
objects, then the termination may be carried out in accordance with Art. 67: (2)
• Must be carried out through an instrument signed by an authorised representative: Article 67
• If a State objects, resort to Art. 33 of the UN Charter is necessary: (3)
• What Art. 33 requires is that States settle their dispute through negotiation, mediation, arbitration, and other peaceful
means.
‣ If no solution has been reached after 12 months following the date of the objection:
✓Any one of the parties may submit it to the ICJ for a decision unless the parties agree to submit to
arbitration
✓Any one of the parties may set in motion the procedure laid down in the Convention by submitting a
request to the Secretary- General of the United Nations.
Authority to Termination -- Who can terminate treaties?

The Convention does not specify who has the authority to terminate, but as a corollary, those empowered to enter into them can
be deemed the same ones empowered to terminate them.
Succession to Treaties
A new State succeeding another State previously a party to a treaty is not obliged to maintain in force that treaty or to
become a party thereto.This is called the clean slate rule.
Exceptions to the clean slate rule:
• Boundary Regimes – succession does not affect boundaries already set by a treaty, or obligations and rights established
relating to the regime of a boundary.
• Other territorial regimes – succession does not affect use of any territory, or restrictions thereof, or rights established by a
treaty for the benefit of any territory.
‣ The provisions on other territorial regimes do NOT apply to treaty obligations of the predecessor State providing for
establishment of foreign military bases.
Registration of Treaties
Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and
recording, as the case be, and for publication: Article 80
• By virtue of art.102 of the UN, only treaties registered with the UN may be invoked before the ICJ.
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7. State Jurisdiction
Jurisdiction General
State jurisdiction refers to the power of a state under international law to govern persons and property by its municipal law
(subject natural persons and things to its domestic law).
Three forms traditionally:
• Legislative (prescriptive jurisdiction): Create rules of general import
• Judicial (adjudicative jurisdiction): Authority of the a state to subject particular persons or things to its judicial process
• Executive (respectively enforcement): Authority of a state to use the resources of government to induce or compel
compliance with its law
Public international law limits itself to criminal not civil jurisdiction, because civil jurisdiction is subject of conflicts of law or
private international law.
Two possible limitations upon a state’s freedom to exercise enforcement jurisdiction
• The idea of double jeopardy
• When a person is placed in a position where under the law of State A he is required to do something which he is
prohibited from doing under the law of State B.
Prescriptive Jurisdiction over Crimes
5 basic principles
• Territorial Principle: Lotus Case
‣ Determining jurisdiction by reference to the place where the offence is committed
- subjective territoriality: creates jurisdiction over crimes commenced within the state even if completed or
consummated abroad.
- objective territorial principle: jurisdiction is founded where any essential constituent element of a crime is
consummated on the forum state’s territory: Lotus Case
• Nationality principle
‣ Determining jurisdiction by reference to the nationality or national character of the person committing the offence.
- Provides the primary criterion for criminal acts in locations such as Antarctica, where the ‘territorial’ criterion is
not generally recognised.
• Passive Personality Principle
‣ Determining jurisdiction by reference to the nationality or national character of the person injured by the offence.
- To protect nationals outside the State’s territory.
‣ Pros and Cons:
- This could lead to multiple conflicting claims to jurisdiction where an attack may lead to the deaths of the
nationals of many different countries
- There may be fair trial issues given the victims are nationals of the state in question and Defendant is a non-
national alleged to do the harm
- Pro: seen as a way to fill in the gap and protect nationals when no other state will be able or have the motive to
exercise jurisdiction
‣ Less grounding and inessential to any state if another basis for jurisdiction can be provided for (much weaker than
other principles)
• Protective Principle
‣ Determining jurisdiction by reference to the national interest injured by the offence
- Interest in protecting itself against acts, even if performed outside of its territory and by persons that owe it no
allegiance, that threaten its existence or its proper functioning as a State
• Universality Principle: Attorney-General of the Government of Israel v Eichmann
‣ Certain activities are so universally condemned that any state has an interest in exercising jurisdiction to combat
them
- Concerns mainly the so-called ‘core crimes’ of customary international law, including slavery, genocide, crimes
against humanity and breaches of the laws of war, and especially of the Hague Convention of 1907 and grave
breaches of the Geneva Conventions of 1949.
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As a practical matter, whilst States may protest the use of exorbitant prescriptive jurisdiction by others, unless the prescribing
State attempts to enforce the jurisdiction claimed, it is unlikely that any substantive legal action will be taken.
Territory Principle
The fundamental source of jurisdiction. A state has absolute but not necessarily exclusive power to prescribe, adjudicate and
enforce rules for conduct that occurs within its territory.This is why it is necessary to determine boundaries.
Rules on boundaries
• Boundary separating two states is determined by acts of the states expressing their consent to the location.
Subjective territoriality
• A state has jurisdiction to prosecute and punish crime commenced within the state but completed abroad.
Objective territoriality
• Jurisdiction is founded when an essential constituent element of a crime is consummated on the forum State’s territory:
Lotus Case
➡ The burden of proof lies on the State who asserts an exercise of national jurisdiction violated international law.
Ex-territorial jurisdiction must be exercised with the consent of the States within whom the offence is committed: Lotus Case
1. The case concerned a collision on the The Lotus Case

high seas between a French Steamer France v Turkey (1927)
and a Turkish collier in which the latter
sank and Turkish crew members and
➡ Vessels sailing on the high seas are subject only to international law and the laws of the flag state.
passengers lost their lives. ➡ Note, the case is altered by the 1982 Law of the Sea Convention, art. 97:
2. The French steamer having put into port in • In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or
Turkey for repairs, the officers of the watch
were tried and convicted of involuntary
disciplinary responsibility of the master or of any other person in the service of the ship, NO penal or disciplinary
manslaughter. proceedings may be instituted against such person except before the judicial or administrative authorities either of the
Is Turkey is violating a principle of flag State or of the State of which such person is a national.
international law by prosecuting a foreign
national? What is their basis for doing so? ➡ Only France has the jurisdiction because the nationality of the master is France and the flag of the vessel belongs to
Held,Turkey was entitled to do so based on France.
the territorial principle.
Burden of proof
➡ The principle of territoriality does not limit the power of a State to try crimes and, moreover, that any argument against such
power must point to a specific rule in international law which negates that power.
• Asserts that international law allows the exercise of national jurisdiction unless a specific prohibition on doing so is
identified in in international law
➡ hence, the burden of establishing that an exercise of national jurisdiction violated international law rests upon the state or
person asserting the violation
• France has to show that such a violation of IL exists, rather than compelling Turkey to establish a ground for its
national jurisdiction
• Turkey did not act in conflict with principles of IL because France failed to establish that any of his three arguments
exist.
➡ Rules of International law flow from the consent of states as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims, Therefore restrictions upon the independence of States can
never be presumed.
Objective territorial principle adopted -- DECISIVE matter: the place that the effects of the crime occurred
➡ Jurisdiction can be determined by looking at the elements [effects] of the crime.
➡ It is certain that courts of many countries interpret criminal law in the sense that offences, the authors of which at the
moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the
national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there.
The unilateral and extra-territorial use of enforcement jurisdiction is impermissible.

➡ Territoriality of criminal law is not absolute in international law.
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• Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally
true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State
which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law is not an absolute
principle of international law and does not coincide with territorial sovereignty.
➡ Which means the only prohibitive rule is that criminal jurisdiction should not be exercised, without permission, within the
territory of another State.
➡ If a State wants to prosecute somebody in another State, it must have the consent of the latter State.
➡ A state in whose territory an alleged offender is present must either extradite him or her to a State that has a link with
the offence, or prosecute the alleged offender itself.
How to define the territory in High Sea?

➡ If follows that what occurs on board a vessel on the high sea must be regarded as if it occurred on the territory of the State
whose flag the ship flies.
• The conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on
which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory
and prosecuting, accordingly, the delinquent.
Protective Principle & Universality Principle

Protective principle
• A state may exercise jurisdiction over conduct outside its territory what threatens its security so long as that conduct is
generally recognised as criminal by states in the international community.
• Question to ask
• Which states national interests are being harmed by the offence in question over which some state is trying to
exercise jurisdiction?
• Limitations: Only offences posing a direct, specific threat to national security, i.e., need to work out the “linking point”
➡ a legal connection that links the punisher with the punished: Attorney-General of the Government of Israel v
Eichmann; Joyce v DPP [1946] AC 347
➡ A merely political, economic, commercial or social interest does not itself constitute a sufficient connection.
➡ Whether another State has an equally close or a closer, or perhaps the closest, contact, is not necessarily
an irrelevant question, but cannot be decisive where the probability of concurrent jurisdiction is conceded...
(Notes)
• Not a central argument
• Secondary to territorial and national principle
• Claimed by most states and misgivings by a few other states
• More subjective and possible controversy on who is to decide which state’s interests are harmed
Universality principle: Attorney-General of the Government of Israel v Eichmann
• Certain activities, universally dangerous to states and their subjects, require authority in all community members to punish
such acts wherever they may occur, even absent a link between the state and the parties or the acts in question.
• Currently covers genocide, crimes against humanity, war crimes, aircraft piracy and terrorism. Growing support for
universal jurisdiction over crimes against human rights.
➡ It is equally necessary that universal criminal jurisdiction be exercised only over those crimes regarded as the most
heinous by the international community: :The Arrest Warrant case (2002)
• States do not exercise this very often in practice because they do not see an interest.
• Must give opportunity to the accused’s State to charge the accused himself:The Arrest Warrant case (2002)
• Controversial when it touches on political subjects
• One argument for jurisdiction not grounded in traditional reasons of sovereignty
✓ Theoretically understood as a way to fight impunity and having safe havens for perpetrators of international
crimes:The Arrest Warrant case (2002)
➡ Diplomatic and consular agents, certain high-ranking officials in a state, such as the Head of State, Head
of Government, and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other states, both civil
and criminal.
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A person being tried for an offence against the laws of a State may not oppose is trial by reason of the illegality of his arrest
or of the means whereby he was brought within the jurisdiction of that State: Attorney-General of the Government of Israel v
Eichmann
1. Eichmann, a Nazi, fled to Argentina & Attorney-General of the Government of Israel v Eichmann (1961)
was captured (kidnapped) by un- ➡ Universal jurisdiction over crimes against humanity; manner of arrest does not affect jurisdiction.
official Israeli agents. Brought to Israel &
tried for crimes against humanity
Judgment for Israel. Whether Israel had the jurisdiction?
The principle of territorial sovereignty merely requires that the State exercise its power to punish within its own borders, not
outside them; that subject to this restriction every State may exercise a wide discretion as to the application of its laws and the
jurisdiction of its courts in respect of acts committed outside the State; and that only in so far as it is possible to point to a
specific rule prohibiting the exercise of this discretion...
➡ That view was based on the following two grounds:
a. It is precisely the conception of State sovereignty which demands the preclusion of any presumption that there is a
restriction on its independence; &
b. Even if it is true that the principle of the territorial character of criminal law is firmly established in various States, it is no
less true that in almost all of such States criminal jurisdiction has been extended . . . so as to embrace offences
committed outside its territory. . .
• The State of Israel’s “right to punish” the accused derives, in our view, from two cumulative sources:
a. A universal source (pertaining to the whole mankind), which vests the right to prosecute and punish crimes of this order
in every State within the family of nations; and --> (universal principle)
b. A specific or national source, which gives the victim nation the right to try any who assault its existence. --> (protective
principle).
Interpretation of the universal principle

It is the universal character of the crimes in question which vests in every State the power to try those who participated in the
preparation of such crimes, and to punish them therefor. It follows that the State which prosecutes and punishes a person for
that offence acts solely as the organ and agent of the international community, and metes out punishment to the offender for his
breach of the prohibition imposed by the law of nations. . . .
How to work out by rules of a “protective principle”?

The protective principle was justifiable as a basis for jurisdiction because of “the inadequacy of most national legislation
punishing offences committed within the territory against the security, integrity and independence of foreign states.14
• Protective jurisdiction requires a “linking point”, i.e., a legal connection that links the punisher with the punished.
‣ The “linking point” between Israel and the accused is striking in the case of “crime against the Jewish people”, a crime
that postulates an intention to exterminate the Jewish people in whole or in part...
✓ This crime very deeply concerns the “vital interest” of the State of Israel, and under the “protective principle” this
State has the right to punish the criminals.
• A merely political, economic, commercial or social interest does not itself constitute a sufficient connection.
• Whether another State has an equally close or a closer, or perhaps the closest, contact, is not necessarily an irrelevant
question, but cannot be decisive where the probability of concurrent jurisdiction is conceded...(Notes)
Manner of arrest
➡ It is an established rule of law that a person being tried for an offence against the laws of a State may not oppose is trial by
reason of the illegality of his arrest or of the means whereby he was brought within the jurisdiction of that State.
a. In the absence of an extradition agreement between the State to which a "fugitive offender" has been brought for trial
and the country of "asylum" . . . and even if there existed such an agreement . . . but the offender was not extradited . . . in
accordance therewith, the Court will not investigate the circumstances in which he was detained and brought to the area
of jurisdiction (Sir: the “Ma-and-Pa” doctrine, originally from Ker v. Illinois).
14 Commentary to the Harvard Research Draft Convention.

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b. This also applies if the offender's contention be that the abduction was carried out by the agents of the State prosecuting
him, since in such a case the right violated is not that of the offender, but the sovereign right of the State aggrieved.
c. The aggrieved State may condone the violation of its sovereignty and waive its claims, including the claim for the return
of the offender to its territory, and such waiver may be explicit or by acquiescence.

d. If the State, from which the offender was taken, demands his reconduction only if two conditions are satisfied (Notes):
i. that the State is the forum conveniens for his trial, and
ii. that the State declares an intention to put the offender on trial.
1. International arrest warrant issued by The Arrest Warrant Case

a Belgian investigating judge against Democratic Republic of the Congo v Belgium (2002)
Congo Foreign Minister, charging him with General rule with respect to immunity for Ministers
offences constituting war crimes amounting
to grave breaches of the 1949 Geneva • Although various international conventions on the prevention and punishment of certain serious crimes imposed on States
Conventions and crimes against humanity. obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of
2. The accused was not in Belgium when the
warrant was issued.
jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs.
3. No Belgian national was a victim of the ➡ Throughout the duration of his office, he when abroad, enjoys full immunity from criminal jurisdiction and inviolability. This
alleged offence. Nor was there any other immunity and inviolability protect the individual concerned from any act of authority of another state which would hinder
link between Belgium and the accused.
4. Congo filed an “optional clause” application him or her in the performance of his or her duties. There can be no distinction from acts which were performed in an
against Belgium claiming in effect that “official” capacity and in a “private” capacity.
Belgium lacked jurisdiction in international
law to issue and circulate the warrant and
that, in any event, the accused had Customary international rule on immunity of ministers
diplomatic immunity as a Minister for • Such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those
Foreign Affairs.
The Court upheld the DRC’s immunity claim.
countries’ courts in accordance with the relevant rules of domestic law.
• They will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to
waive that immunity.
• After a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities
accorded by international law in other States.
• A court of one State may try a former Minister 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.
• An incumbent or former Minister may be subject to criminal proceedings before certain international criminal courts, where
they have jurisdiction.
Difference between procedural law and substantive law

The Court emphasises, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not
mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. 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. International immunity may well bar prosecution for certain
period or for certain offences, it cannot exonerate the person to whom it applies from all criminal responsibility.
Universal jurisdiction
• A State contemplating bring criminal charges based on universal jurisdiction must first offer to the national State of the
prospective accused person the opportunity itself to act upon the charges concerned.
➡ Must give opportunity to the accused’s State to charge the accused himself.
France --> A method of legal practice in • Further, such charges may only be laid by a prosecutor or juge d’instruction who acts in full independence, without links to or
which the judge endeavours to discover control by the Government of that State..
facts while simultaneously representing the
interests of the state in a trial • It is equally necessary that universal criminal jurisdiction be exercised only over those crimes regarded as the most heinous by
the international community.
Enforcement Jurisdiction
The unilateral and extra-territorial use of enforcement jurisdiction is impermissible:The Lotus case
• Governing Principle: A State cannot take measures on the territory of another State by way of enforcement of its
laws without the consent of the latter.
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• Consent may be given on an ad hoc basis or by entering into a bilateral or multilateral agreements.
• Judicial assistance that might be relied on -->Extradition
• Apartment from trial in absentia, States have to depend on the co-operation of the other States in order to
obtain surrender of suspected criminals or convicted criminals who are, or have fled, abroad.
Effects Doctrine
• A State has jurisdiction over acts occurring outside its territory but having effects within it.
Principle of substantial Connection
• A State has enforcement jurisdiction abroad only to the extent necessary to enforce its legislative jurisdiction.
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8. The Law of Sea

15
Territorial Sea
The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea: UNCLOS, Art 2(1)
Internal Waters
Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State: UNCLOS, Art
8(1)
Legal Status
Coastal State has complete and exclusive sovereignty subject to the right of foreign vessels in distress to seek safety in internal
waters: UNCLOS, Art 2(1)
No right of innocent passage through internal waters.
• However, where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had
not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those
waters: UNCLOS, Art 8(2)
Bays
A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked
waters and constitute more than a mere curvature of the coast: UNCLOS, Art 10(2)
• An indentation shall not be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose
diameter is a line drawn across the mouth of that indentation: UNCLOS, Art 10(2)
• The width of the indentation’s mouth shall not exceed 24 nautical miles, otherwise, a straight baseline of 24 nautical
miles shall be drawn within the bay: UNCLOS, Art 10(5)
Straits
A strait is a narrow stretch of water connecting two extensive areas of sea.
Three characteristics:
• Between two lands
• Connects two seas
15Unless otherwise provided, the law of sea is subject to the Convention on the Law of the Sea 1982.The Convention entered into force in
1994 and 160 states are now parties.
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8. The Law of Sea
• Naturally develop.
Ports
Coastal State has the right to regulate access to its ports: UNCLOS, Arts 25(2), 211(3), 255.
Rivers
If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the
low-water line of its banks: UNCLOS, Art 9
Islands
An island is a naturally formed area of land, surrounded by water, which is above water at high tide: UNCLOS, Art 121(1)
• Rocks which cannot sustain human habitation or economic life of their own shall have no EEC or continental shell:
UNCLOS, Art 121(3)
Characteristic of Territorial Sea
Being adjacent to territorial land and internal water: UNCLOS, Art 2(1)
Being limited to a certain width, i.e., not exceeding 12 nautical miles, measured from baseline: UNCLOS, Art 3
Under the sovereignty of a coastal State: UNCLOS, Art 2(1)
Legal Status of Territorial Sea
Costal State has complete and exclusive sovereignty subject to LOSC and other rules of international law: UNCLOS, Art 2(3)
• The sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil: UNCLOS, Art 2(2),
mainly include:
- State ownership of natural resources;
- Sovereign over territorial airspace;
- Right of navigation and trade along the coast;
- Legislative power (for example, navigation; cable and pipe laying; fisheries; pollution; scientific research; customs;
fiscal, immigration and sanitary regulations);
- Right of jurisdiction
- Right of hot pursuit
- Neutral right
Breadth and delimitation of the territorial sea
Breadth of the territorial sea

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured
from baseline: UNCLOS, Art 3
Interior limit of the territorial sea

The interior limit of the territorial sea is the baselines of the territorial sea, which is the boundary between internal waters and
territorial sea: UNCLOS, Art 3
Outer limit of the territorial sea

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline
equal to the breadth of the territorial sea: UNCLOS, Art 4
If States are opposite or adjacent to each other

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement
between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the
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nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. ...:
UNCLOS, Art 15
• Exceptions: This does not apply where “it is necessary by reason of historic title or other special circumstances to
delimit the territorial seas of the two States in a way which is at variance therewith”: UNCLOS, Art 15
Three consideration needs to be considered in delimiting the territorial sea: Anglo-Norwegian Fisheries
Case:
• A State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and
local requirements. However, the delimitation should not be contrary to the customary international law.
• In deciding whether certain sea areas are subject to territorial sea or internal waters, consider whether they are
sufficiently closely linked to the land domain.
• Certain economic interests peculiar to a region should be taken into account, the reality and importance of which
are clearly evidenced by long usage.
1. In 1935 Norway delimited a certain Anglo-Norwegian Fisheries Case

fisheries zone which was exclusively U.K. v Norway (1951)
reserved to its nationals.
Use the low-water mark.
2. This delimitation, using straight baselines,
was opposed by the UK. For the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or
3. The coastal zone involved has a distinctive the mean between the two tides, which has generally been adopted in the practice of States. This criterion is the most favourable
configuration (long and very broken).
The Court upheld this Norwegian delimitation. to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory.
➡ Norway‘s baselines were valid. But the Norwegian delimitation is still subject to certain principles which make it possible to
judge the delimitation’s validity under international law. The delimitation of sea areas has always an international aspect; it
cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the
act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the
delimitation with regard to other States depends upon international law. Certain basic considerations inherent in the nature of
the territorial sea bring to light certain criteria which, though not entirely precise, can provide courts with an adequate basis
for their decisions, which can be adapted to the diverse facts in question.
➡ Among these some reference must be made to the close dependence of the territorial sea upon the land domain. It is the
land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be
allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the
drawing of base-lines must not depart to any appreciable extent from the general direction of the coast.
➡ Another fundamental consideration is the more or less close relationship existing between certain sea areas and the land
formations which divide or surround them. The real question raised in the choice of base-lines is in effect whether certain sea
areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters.
This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a
coast, the geographical configuration of which is as unusual as that of Norway.
➡ The last consideration is that of certain economic interests peculiar to a region, the reality and importance of which are clearly
evidenced by long usage.
Skjaergaard; defined.
A skjaergaard is made up of around 120,000 insular formations, lying along the coast of the mainland. The clearest dividing line
between land and sea is the skjaergaard, not the coast of the mainland.
Straight baselines method; defined.

This method consists in selecting appropriate points on the low water mark and drawing straight lines between them. Method
applies to well-defined bays and cases of minor curvature of the coastline. The goal is to provide a simpler form to the belt of the
territorial waters.
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Trace parallele method; defined.

This method consists in drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. Method
applies to ordinary coasts.
Jurisdiction over Foreign Ships in the Territorial Sea

16
Definition of Innocent Passage

All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage
through the territorial sea in accordance with international law, for which neither prior notification nor authorisation is
required: UNCLOS, Art 17
• Passage means navigation through the territorial sea for the purpose of : UNCLOS, Art 18
• traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters;
or
• proceeding to or from internal waters or a call at such roadstead or port facility.
• Passage is innocent so long as it is not prejudicial to the peace, good order or security of the costal State: UNCLOS, Art 19
• Passage who shall be considered to be prejudicial to the peace is considered in art.19(2)
• “Warship” means a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of
its nationality, under the command of an officer duly commissioned by the government of the State and whose name
appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces
discipline: UNCLOS, Art 29.
Submarines (warships or otherwise) to navigate on the surface need to show their flag: Article 20.
• It is a matter for evaluation of the submarine’s behaviour to see if it is possible to be an innocent passage. (Notes)
Prescriptive jurisdiction for innocent passage

The Costal State may adopt laws and regulations relating to innocent passage through the territorial sea: UNCLOS, Art 21
The Costal State shall not impose requirement on foreign ships or discriminate in form or in fact against the ships of any
State: UNCLOS, Art 24
Warship has to comply with the law and regulations of the costal State: UNCLOS, Art 30
Enforcement jurisdiction for innocent passage

The costal State may take the necessary steps in its territorial sea to prevent passage which is not innocent: UNCLOS, Art
25(1)
• Such steps may include the use of reasonable force as a last resort: Saiga Case
• The costal State may , without discrimination in form or in fact among foreign ships, suspend temporarily in specified
area of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its
security: UNCLOS, Art 25(3)
• Such suspension shall take effect only after having been duly published.
No Charge may be levied upon foreign ships by reason only of their passage through the territorial sea: UNCLOS, Art 26(1)
• Except for specific services rendered to the ship: (2)
The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial
sea unless: UNCLOS, Art 27
• if the consequence of the crime extend to the coastal State; (1)(a)
• if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (1)(b)
• if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or
consular officer of the flag State; or (1)(c)
• if such measure are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. (1)(d)
• Costal State can take steps authorised by its laws for the purpose of an arrest or investigation on board a foreign ship
passing through the territorial sea after leaving internal waters. (2) --> The criminal escaped from inland.
• Exceptions: if the ship did not entering internal waters, the Costal State cannot perform an arrest or investigation. (5)
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Passage through internal waters

There is no right of innocent passage through internal waters.
Principles in regards of innocent passage: Corfu Channel Case
• If a Channel connects two parts of the high seas and is used for international navigation, then the Channel belongs
to the class of international highway and accordingly, the right of innocent passage exists.
• In deciding whether a Channel is an international highway, it is not decisive that this Channel is not a necessary
route between two parts of the high seas, but only an alternative passage.
• If the two coastal States do not maintain a normal relationship, it would be justified in issuing regulations in respect
of the passage of warships through the Strait, but either of them is not entitled to prohibit such passage or in
subjecting it to the requirement of special authorisation.
• The costal State has a duty to inform those passages of the foreseeable danger.
1. On May 15, 1946, the two British Corfu Channel Case (Merits)
cruisers, while passing southward U.K. v Albania (1949)
through the North Corfu Channel, were
fired at by an Albanian battery in the ➡ Remedial law principles such as circumstantial evidence can actually be a basis for finding factual disputes.
vicinity of Saranda. • Allowance for admission of circumstantial evidence, a general principle of law. The exclusive control exercised by a State
2. UK at once protested to the Albanian within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of
Government, sating that innocent passage
through straits is a right recognised by a violation of international law. The State which is the victim must, in that case, be allowed a more liberal recourse to
international law. inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based
3. Albanian Government asserted that foreign on a series of facts, linked together and leading logically to a single conclusion.
warships and merchant vessels had no
right to pass through Albanian territorial
waters without prior notification to, and the ➡ States in time of peace have a right to send their warships through straits used for international navigation between two parts
permission of, the Albanian authorities.
of the high seas without the previous authorisation of a coastal State, provided that the passage is innocent.
4. October 22, 1946, the two cruisers
together with the two destroyers were sent
through the North Corfu Strait on and • In deciding whether a Channel belongs to the class of international highways through which a right of passage exists
encountered explosion.
5. UK was very angry for the explosion, ➡ The decisive criterion is rather its geographical situation
alleged that Albania failed to notify the ➡ Query whether the situation is as connecting two parts of the high seas and the fact of its being used for
existence of mines, and raised up international navigation.
“Operation Retail” as the method of self-
protection to destroy the mines in Albania’s ➡ If the answer is YES, then the Channel belongs to the class of international highways and accordingly the right of
territory. innocent passage exists.
Held,
• Judgment for U.K. in respect of the passage ★ It is not decisive that this Strait is not a necessary route between two parts of the high seas, but only an alternative
on October 22, 1946. passage.
• Judgment for Albania in respect of the
minesweeping of November 13, 1946.
• Under the situation where the two costal States did not maintain normal relations
➡ It would be justified in issuing regulations in respect of the passage of warships through the Strait
★ But not in prohibiting such passage or in subjecting it to the requirement of special authorisation.
• However, the “Operation Retail” could not be justified as the exercise of a right of innocent passage, because
➡ International law does not allow a State to assemble a large number of warships in the territorial waters of another State
and to carry out minesweeping in those waters.
• It is not an excuse that the operation was one of extreme urgency, so as to entitle the U.K. to carry it out without
anybody’s consent.
• The operation can only be regarded as the manifestation of a policy of force, gives rise to most serious abuses,
which violates international law.
Analysis in regards of Albanian’s responsibility of notification

In the present case two series of facts, which corroborate one another, have to be considered. The first relates to the Albanian
Government's attitude before and after the catastrophe. The laying of the mines took place in a period in which it had shown its
intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorisation before they were
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entered, this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori
improbable. Moreover, when the Albanian Government had become fully aware of the existence of a minefield, it protested
strongly against the activity of the British Fleet, but not against the laying of the mines, though this act, if effected without her
consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield,
as would be required by international law; and she did not undertake any of the measures of judicial investigation which would
seem to be incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while
knowing of the mine laying, desired the circumstances in which it was effected to remain secret.
The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Geographically, the
channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast. The
methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-a-half hours in the
waters. In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot,
that they considered it to be indisputable that, if a normal look-out was kept and if the lookouts were equipped with binoculars,
under normal weather conditions for this area, the mine-laying operations must have been noticed by these coastguards. From all
the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could not have been
accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not
disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of
the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave
omissions involve her international responsibility.
Straits used for international navigation

Part applies to international navigation between one part of the high seas or an exclusive economic zone and another part of
the high seas or an exclusive economic zone: Article 37 -- Article 44
The regime of innocent passage, shall apply in straits used for international navigation: UNCLOS, Art 45
• At customary international law, the right of innocent passage cannot be suspend on grounds of security in a part of the
territorial sea that is an international strait used for navigation from one party of the high seas to another, as it can in
other parts of the territorial sea: Corfu Channel case
The right of transit passage through international strait is more generous than the right of innocent passage through other
parts of the territorial sea
• Transit passage expressly allows passage by aircraft including military aircraft: Article 38(1) -- all aircraft
• Transit passage appears to allow underwater transit by submarines
• There are also fewer Convention restrictions on conduct during passage: arts 39-41
• There are less power is given to the coastal state to regulate passage: arts 41,42
Jurisdiction over Foreign Ships in Internal Waters
A coastal State may in law exercise jurisdiction in all criminal matters but that as a matter of comity it should not do so unless
the crime disturbs its “peace or tranquillity”:Wildenhus’s case
• Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of
the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders
punished by the proper authorities of the local jurisdiction
• Murder is a kind of offences that disturbs the public peace.
The civil law view is that coastal state’s enforcement jurisdiction in civil matter is unrestricted.
1. The defendant, a United States R v Anderson (1868)

national, was found guilty by the • There is no doubt that the place where the offence was committed was within the territory of France, and that the prisoner
Central Criminal Court of manslaughter on
board a British merchant ship of which he
was therefore subject to the laws of France.
was a crew member. • But at the same time, the offence was also committed within British territory, for the prisoner was a seaman on board a
2. The offence was committed on the River merchant vessel at the time under the protection of British flag, and therefore, also amenable to the provisions of British law.
Garonne in France some 300 yards from
shore when the ship was on its way to ➡ From the passage in the treatise of Ortolan, it appears that, with regard to offences committed on board of foreign vessels
Bordeaux. within the French territory, the French nation will not assert their police law unless invoked by the master of the vessel, or
3. The defendant appealed on the ground unless the offence leads to a disturbance of the peace of the port.
that the Court had lacked jurisdiction to try
him. 53
Held that the prisoner was amenable to the
British law, and that the conviction was right.

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1. Wildenhus, a Belgian crew member of Wildenhus’s Case (1887)

a Belgian merchant ship, was found ➡ But if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel
guilty by an American state court of the has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of local
murder of another Belgian crew member
on board the ship when it was docked in laws for their punishment, if the local tribunals see fit to assert their authority.
the port of Jersey City, New Jersey. ➡ The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are
2. It was argued in this application for habeas
to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be
corpus that, under a consular convention of
1880 between Belgium and the US, the suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction
US court had lacked jurisdiction.
The application was rejected by the US
Contiguous Zone
Supreme Court.
Governed by UNCLOS, Art 33.
Concepts of Contiguous Zone
In a zone contiguous to its territorial sea.

The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the
territorial sea is measured: UNCLOS, Art 33(2)
Legal Status of Contiguous Zone
Coastal State may exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws, and
to punish infringements of the above laws committed within the territorial sea: UNCLOS, Art 33(1)(a)-(b)
Contiguous zone can be used to control traffic in archeological and historical objects found at sea: UNCLOS, Art 303(2)
The Exclusive Economic Zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea, shall not extend beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured.
• beyond and adjacent to the territorial sea: UNCLOS, Art 55
• shall not extend beyond 200 nautical miles from the baseline: UNCLOS, Art 57
Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or
continental shelf: UNCLOS, Art 121(3)
Legal System
The zone is treated as an intermediate area of sea between the high seas and the territorial sea with a distinct regime of its
own.
A costal States must declare the establishment of its EEC as well as its scope, otherwise the marine zone will be regarded as
high seas.
Rights, jurisdiction and duties of the coastal State

Rights: UNCLOS, Art 56(1)
• Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether
living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and
• With regard to other activities sovereign rights for the economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds
• Foreign ships in passage are subject to the coastal state’s enforcement jurisdiction in respect of illegal fishing (art. 73)
and the control of pollution (art.220).
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• Ships and their crews that are arrested under art.73(1) must be “promptly released upon the posting of reasonable
bond or security”: UNCLOS, Art 73(2)
• Whether it is reasonable depends on a number of facts (not exhaustive):
• the gravity of the alleged offences,
• the penalties imposed or imposable under the laws of the detaining State,
• the value of the detained vessel and of the cargo seized,
• the amount of the bond imposed by the detaining State and its form.
Jurisdiction: UNCLOS, Art 56(2)
• The establishment and use of artificial islands, installation and structures;
• Marine scientific research;
• The protection and preservation of the marine environment.
• In the case of unregulated uses, any conflict between a coastal and other state “should be resolved on the basis of
equity”, etc: UNCLOS, Art 59
Duties:
• The coastal State shall have due regard to the rights and duties of other States: UNCLOS, Art 56(3)
• The coastal state is entitled to reserve all the allowable catch for its fishermen if they are capable of exploiting it:
UNCLOS, Art 62(2)
Rights and duties for other States in the EEZ

Rights: UNCLOS, Art 58(1)
• The freedoms of navigation and overflight;
• The freedoms of the laying of submarine cables and pipelines; and
• Other internationally lawful uses of the sea related to these freedoms.
Duties: UNCLOS, Art 58(3)
• States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations
adopted by the coastal State.
Continental Shelf
The continental shelf of a costal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin.
Breadth of the Continental Shelf
To a distance of 200 nautical miles from the baseline..: UNCLOS, Art 76(1)
The maximum you can extend a continental shelf is 350 nautical miles, or 100 miles seawards of the 2500m isobath.
Legal Status of Continental Shelf
The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express
proclamation: UNCLOS, Art 77(3)
The coastal State exercises exclusive sovereign rights over the continental shelf for the purpose of exploring it and exploiting
its natural resources: UNCLOS, Art 77(1)(2)
• The rights is limited in the sense only for the purpose of exploring it and exploiting its natural resources, not sovereignty.
The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air
space above those waters: UNCLOS, Art 78(1)
Legal System
Rights and duties of the coastal State
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The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural
resources: UNCLOS, Art 77(1)
The rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural
resources, no one may undertake these activities without the express consent of the coastal State: UNCLOS, Art 77(2)
The coastal State shall have the exclusive right to authorise and regulate drilling on the continental shelf for all purposes:
UNCLOS, Art 81
The coastal State shall have the exclusive right to construct and to authorise and regulate the construction, operation and use
of artificial islands and necessary installations and structures: UNCLOS, Art 79(4)
The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable
interference with navigation and other rights and freedoms of other States: UNCLOS, Art 78(2)
Rights and duties of other States over the continental shelf

Navigation: UNCLOS, Art 78(2)
All States are entitled to lay submarine cables and pipelines on the continental shelf: UNCLOS, Art 79(1)
Relationship between EEC and Continental Shelf
Overlapping
There is an overlapping area within the 200 nautical miles.
Difference
Exclusive Economic Zone Continental Shelf
Jurisdiction Need proclamation. No need to proclaim.
Breadth Maximum: 200 nautical miles. Minimum: 200 nautical miles.
Limited to the mineral and other non-living resources

Sovereign rights for the purpose of exploring
Duties and rights of the sea-bed and subsoil together with living
and exploiting, conserving and managing the
organism belonging to sedentary species, excluding
natural resources
bottom fish, shrimps, prawns and octopuses.
1. Romania and Ukraine requested the Case Concerning Maritime Delimitation in the Black Sea
Court to draw “in accordance with Romania v Ukraine (2009)
international law” a single maritime
Equidistance rule: First step: establish a provisional delimitation line.
boundary line between their continental
shelf and exclusive economic zones in the • So far as delimitation between adjacent coasts is concerned, an equidistance line will be drawn unless there are compelling
Black Sea. reasons that make this unfeasible in the particular case.
• So far as opposite coasts are concerned, the provisional delimitation line will consist of a median line between the two coasts.
Special circumstances rule: Second step: whether there should be an adjustment?

• Adjustments may be made in order to achieve an equitable result.
• Have to consider
• Where disparities in the lengths of coasts are particularly marked, the Court may choose to treat that fact of geography
as a relevant circumstance that would require some adjustments to the provisional equidistance line to be made.
• A substantial difference in the lengths of the parties’ respective coastlines may be a factor to be taken into
consideration.
• The presence of small islands in one state’s vicinity may be taken into consideration.
• However, very small islands may not be taken into account or not to give them full potential entitlement to
maritime zones.
• Resource-related criteria are relevant only where the equidistance line will have “catastrophic repercussions”.
• The legitimate security considerations of the parties may play a role in determining the final delimitation.
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The High Seas
The provisions of this Part [‘the High Seas’] apply to all parts of the sea that are not included in the exclusive economic zone, in
the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not
entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58:
UNCLOS, Art 86
Freedom of the high seas
The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the
conditions laid down by this Convention and by other rules of international law: UNCLOS, Art 87(1)
• The freedom of the high seas comprises, inter alia:
a) freedom of navigation;
b) freedom of overflight;
c) freedom to lay submarine cables and pipelines, subject to Part VI [‘the Continental Shelf ’];
d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI
[‘the Continental Shelf ’];
e) freedom of fishing, subject to the conditions laid down in section 2;
f) freedom of scientific research, subject to Parts VI [‘the Continental Shelf ’] and XIII [‘Marine Scientific Research’].
➡ This is not an exhaustive list
‣ E.g., weapons testing, exercises, naval manoeuvres, observing other States’ naval manoeuvres.
The high seas shall be reserved for peaceful purposes: UNCLOS, Art 88
• The UK Government takes the view that rocket and other weapons testing on the high seas does not contravene this
provision: Hansard.
• Nuclear test is not allowed in some high seas area: Nuclear Test cases
No State may validly purport to subject any part of the high seas to its sovereignty: UNCLOS, Art 89
Jurisdiction on the high seas
Jurisdiction of the flag State

Nationality of ships
• Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and
for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a
genuine link between the State and the ship: UNCLOS, Art 91
• The flying flag following the registration represents the nationality of ship.
• Vessels on the high seas are subject to no authority except that of the State whose flag they fly: Lotus Case
• A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the
nationalities in question with respect to any other State, and may be assimilated to a ship without nationality: UNCLOS,
Art 92(2)
• A ship is not prohibited from sailing without a flag. If it does so, however, it is, for the purpose of protection at least,
treated as the equivalent of a stateless person: Naim Molvan v Att.-Gen. for Palestine
• Complete immunity of warships from the jurisdiction of any State other than the flag State on the high seas: UNCLOS,
Art 95
• Complete immunity of ships used only on government non-commercial service: UNCLOS, Art 96
Status of ships: UNCLOS, Art 92(1)
• Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international
treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag
during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. (1)
Duty of the flag State:
• Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships
flying its flag, duty includes: UNCLOS, Art 94
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• Maintain a register of ship containing the name and particulars of ships flying its flag: (2)(a)
• Assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of
administrative, technical and social matters concerning the ship: (2)(b)
• Take such measures for ships as are necessary to ensure safety at sea: (3)
• Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine
casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious
injury to nationals of another State or serious damage to ships or installations of another State or to the marine
environment. The flag State and the other State shall co-operate in the conduct of any inquiry held by that other
State into any such marine casualty or incident of navigation: (7)
Penal jurisdiction in collisions

Only the flag State, or State of which the master or crew are nationals, has jurisdiction over such criminal or disciplinary
proceedings: UNCLOS, Art 97
• This altered the traditional position as set out by the PCIJ in the SS Lotus Case
Universal jurisdiction -- exceptions to the exclusive enforcement jurisdiction.

Except where acts of interference derived from powers conferred by treaty, a warship which encounters on the high sea a
foreign ship, other than a ship entitled to complete immunity, is justified in boarding it if there is reasonable ground for
suspecting that: UNCLOS, Art 110
a. the ship is engaged in piracy;
• Piracy defined in Article 101.
‣ Any illegal acts of violence or detention, or any act of depredation, committed for private ends
- Private ends simply denote that the violence involved is not public
‣ Privacy can only be committed on the “high seas” or “any other place outside the jurisdiction of any state”:
Article 101(a);
- It may not be committed in the territorial sea.
- The “high seas” means waters beyond the outer limit of the territorial sea, including the EEZ.
‣ Piracy requires two ships or aircraft.
- The taking over of a ship or aircraft by its crew or others on board is not piracy: Santa Maria Incident
b. the ship is engaged in the slave trade;
c. the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction;
• Unauthorised broadcasting defined in Article 109(2)
d. the ship is without nationality; or
e. though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
Protective Jurisdiction
Right to pursue foreign vessel where coastal State considers it has violated laws of coastal State. Pursuit must be commenced
when foreign vessel is in internal waters, archipelagic waters, territorial sea, or contiguous zone, and may only be continued on
the high seas if the pursuit is not interrupted. If pursuit is commenced in the contiguous zone, it can only be for breach of rights
for the protection of which the zone was established: UNCLOS, Art 111(1)
111(2): right applies mutatis mutandis (加上必要的变更) to EEZ and continental shelf
111(3): right ceases as soon as foreign ship enters territorial sea of another State
111(4): must first give visual or auditory signal to the vessel to stop (which it can see or hear)
• A ratio communication is sufficient: R v Mills
111(5): right can only be exercised by naval vessel or military aircraft (or other vessels/planes in public service)
111(8): where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the
exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.
In regards of “reasonable and necessary in the circumstances” rule, see Saiga (No 2) case
Jurisdiction over international crimes on the high seas

Every State shall take effective measures to prevent and punish the transport of slaves...: UNCLOS, Art 99
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8. The Law of Sea
All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas ...” (piracy defined in Article
101): UNCLOS, Art 100
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or
a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. ...:
UNCLOS, Art 105
All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships
on the high seas contrary to international conventions.: UNCLOS, Art 108(1)
All States shall cooperate in the suppression of unauthorised broadcasting from the high seas. ...: UNCLOS, Art 109(1)
Nationality of Ships: Saiga (No 2) Case
• Under Article 91 of the Convention, the criteria for nationality is left to the flag State, which may grant its
nationality to a ship even though it lacks much or any connection with it, and that this nationality will be recognised
in international law for the purpose of protecting the ship under the 1982 Convention.
• The absence of current Vincentian registration was not decisive on the facts of the case.
• A State may not refuse to recognise a ship’s nationality because of the absence of a genuine link; instead the
purpose of the requirement is to “secure more effective implementation of the duties of the flag State”.
• Nationality of the person who can bring the claims is not relevant.
• Except for the EEC, domestic custom law cannot be applied in other area in high seas.
• Concept of “public interest” & “state of necessity”. (see below)
• Explanation of art. 111 -- cumulative effect.
• When there is an infringement of the costal State’s custom laws, use of force should be a last resort.
1. The Saiga is a Cypriot oil tanker that The M/V Saiga (No 2) Case
was arrested and boarded by Guinean
authorities when it was sailing south of the Whether the Saiga had the nationality of Saint Vincent and the Grenadines at the time of its arrest?
southern limit of the exclusive economic
zone of Guinea. ➡ According to article 91, it is for the flag State (Saint Vincent and the Grenadines) to fix the conditions for the grant of its
2. The registration certification was expired nationality to ships, for the registration of ships in its territory and for the right to fly its flag.
on September 12 1997 and a permanent
Vincentian certificate was issued on
November 28, 1997, but not the same According to art.91, whether there must exist a genuine link between the State and the ship?
certificate of a St Vincent and Grenadines • Two questions need to be ask:
ship as the expired one.
3. The applicants are challenging the validity • Whether the absence of a genuine link between a flag State and a ship entitles another State to refuse to recognise the
of the arrest and want damages. nationality of the ship?
4. Guinea is insisting that they had jurisdiction
to arrest and invoke hot pursuit.
➡ There is nothing in article 94 to permit a State which discovers evidence indicating the absence of a proper
jurisdiction and control by a flag State over a ship to refuse to recognise the right of the ship to fly the flag of the
flag State.
➡ The purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is
to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to
which the validity of the registration of ships in a flag State may be challenged by other States.
• Whether or not a genuine link existed between the Saiga and Saint Vincent and the Grenadines at the time of the
incident?
➡ The evidence adduced by Guinea is not sufficient to justify its contention that there was no genuine link between the
Saiga and Saint Vincent and the Grenadines at the material time.
Whether the person in respect of whom Saint Vincent and the Grenadines brought the claims must be its nationals?
➡ According to Article 94, the obligations of the flag State which can be discharged only through the exercise of appropriate
jurisdiction and control over natural and juridical person such as the Master and other members of the crew, the owners or
operators and other persons involved in the activities of the ship.
➡ No distinction is made in these provisions between nationals and non-nationals of a flag State.
➡ Convention considers a ship as a unit, thus the ship, everything on it, and every person involved or interested in its operations
are treated as an entity linked to the flag State.The nationalities of these persons are not relevant.
➡ Any of these ships could have a crew comprising persons of several nationalities. If each person sustaining damage were
obliged to look for protection from the State of which such person is a national, undue hardship would ensue.
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8. The Law of Sea
Whether domestic custom law can be applied in High Seas?

• Under the Convention, a coastal State is entitled to apply customs laws and regulations in its territorial sea (Article 2 and
21)...[and its] contiguous zone ... (Article 33, paragraph 1).
• In the exclusive economic zone, the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial
islands, installations and structures (Article 60, paragraph 2).
➡ The Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the exclusive
economic zone not mentioned above.
Whether Guinea can rely on article 58 (EEZ) by virtue of “public interest” and “self-protection”?
➡ Recourse to the principle of “public interest” would entitle a coastal State to prohibit any activities in the exclusive economic
zone which it decides to characterise as activities which affect its economic “public interest” or entail “fiscal losses” for it.
➡ In order to satisfy the defence based on “state of necessity”, two conditions must be satisfied:
a. The act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and
b. The act did not seriously impair an essential interest of the State towards which the obligation existed.
★ The conditions “must be cumulatively satisfied” and that they “reflect customary international law”.
Hot pursuit issue

➡ The conditions for the exercise of the right of hot pursuit under article 111 of the Convention are cumulative, each of them
has to be satisfied for the pursuit to be legitimate under the Convention.
• Guinea did not comply with several. No visual or auditory signals to stop could have been given to the Saiga. and the
alleged pursuit was interrupted when the patrol boats were recalled before they resumed the chase.
When should force be used under the situation that there is an infringement of the costal State’s customs law in the contiguous
zone?
• The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally
recognised signals.
• Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship.
• It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force.
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9. Immunity from Jurisdiction
State Immunity
State immunity precludes the courts of the forum State from exercising adjudicative and enforcement jurisdiction in certain
classes of case in which a foreign State is a party.
• The grant of immunity is now understood as an obligation under customary international law.
‣ The application of immunity depends substantially on the law and procedural rules of the forum.
Two kinds of State immunity
• Immunity ratione materiae, i.e., by reason of the subject-matter.
‣ Rationale: if organs of the forum State could decide on core questions pertaining to the functioning of a respondent
State without its consent, the respondent State’s sovereignty would be to that extent impugned.
‣ Restrictive theory of immunity
• Immunity is only required with respect to transactions involving the exercise of governmental authority (acta iure
imperii) as distinct from commercial or other transactions which are not unique to the State (acta iure
gestionis).
• Only China, India and a small number of developing States now follow the absolute immunity approach.
• Immunity ratione personae
‣ Foreign State officials should not be impeded in the performance of their functions by a host State’s exercise of
adjudicative or enforcement jurisdiction over them.
‣ Immunity does not bar prescriptive jurisdiction --> foreign officials are not exempt from compliance with the laws of
the host State.
‣ Immunity belongs to the State and not the individual
• Thus immunity covers all acts by the agent during the period of office.
• Difference between “immunity ratione materiae” & “immunity ratione personae”
‣ Once the period of office ends, immunity ratione personae will expire;
‣ however, immunity rationae materiae continues if the acts concerned are such that State immunity attaches.
“Act of State’ doctrine
• Courts will not question a legislative or other act of a foreign State with effect in that State’s own territory.
“Non-justiciability” doctrine
• Courts will not adjudicate upon the transaction of foreign States, wherever they occur.
Waive of immunity
• A State is deemed to have waived its immunity if it institutes proceedings, or intervenes, or takes any step in the
proceedings: s 2(3) State Immunity Act 1978 (UK)
Rationale
The doctrine of State immunity is justified on the basis of equality, independence and dignity of States:The Schooner Exchange
Restrictive theory: I Congreso case
✴ Under the 'restrictive' theory the court has first to characterise the activity into which the defendant state has entered.
‣ Test for the distinction between acts iure imperii and iure gestionis is the “nature” of the act, not its “purpose”: I
Congreso case
• In a contractual context, the Courts must look not only to the nature of the contract, but also to the nature of
the breach: I Congreso case
- If a contract is an act iure imperii, there is immunity;
- If it is an act iure gestionis, a defence of immunity may still succeed if the act in breach of contract is an
act iure imperii.
‣ Whether action/contract was “within the essential sphere of state authority”; whether it involved/required the
exercise of sovereign powers, directly or indirectly: Holland v Lampen-Wolfe
‣ Consider “the whole context within which the claim against the state is made”: I Congreso case
‣ Look at the foreign law governing the entity in question (constitutive instruments etc.) but also its functions and the
degree of state control in practice:Trendtex Trading
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✴ Once pleaded, the burden rests with the plaintiff to disprove foreign state immunity, according to civil standard of proof
(balance of probability) Al- Adsani v Gov’t of Kuwait.
✴ Assuming an act iure gestionis is found by the Court, it should then be for the defendant State to point to some act
clearly done jure imperii.
1. The schooner Exchange, owned by The Schooner Exchange v McFaddon (1812)

John M'Faddon and William
Greetham, sailed from Baltimore, The decision is regarded as an the "first definitive statement of the doctrine of foreign state immunity"Chief Justice
Maryland, on October 27, 1809, for San Marshall delivered the opinion of the court.
Sebastián, Spain. • He noted that a by the definition of sovereignty, a state has absolute and exclusive jurisdiction within its own territory,
2. On December 30, 1810, the Exchange was but that it could also by implied or express consent waive jurisdiction.
seized by order of Napoleon Bonaparte.
3. The Exchange was then armed and • Moreover, Marshall also noted that under international custom jurisdiction was presumed to be waived in a number of
commissioned as a French warship under situations.
the name of Balaou. ‣ For instance, a foreign sovereign and his diplomatic representatives were generally free from the jurisdiction of
4. When the vessel later docked in domestic courts when visiting.
Philadelphia due to storm damage, ‣ Similarly, if a state granted permission for a foreign army free passage across its territory, it generally implied a
M'Faddon and Greetham filed an action in waiver of jurisdiction over that army.
the district court to seize the vessel, ➡ This custom was firmly enough established and necessary for international relations that it would be wrongful for
claiming that it had been taken illegally. a country to violate it without prior notice.
5. The US A-G filed a suggestion to the effect
that the Court should refuse jurisdiction on
the ground of sovereign immunity. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade
The Court found that the vessel in question the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a
was exempt from US jurisdiction.
foreign territory only under an express license or in the confidence that the immunities belonging to the independent sovereign
station, though not expressly stipulated, are reserved by implication, and will be extended to him.
Par in parem non habet imperium (an The perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse,
equal has no authority over an equal), and an interchange of good offices with each other have given rise to a class of cases in which every sovereign is understood to
i.e., equality
1. In 1973, Cubazucar, a Cuban State waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every
trading enterprise, contracted to sell nation.
sugar to a Chilean company.
2. The first ship (Playa Larga) operated by
the Cuban State trading enterprise which I Congreso Del Partido (1983)
was legally independent of the Government Foundations of restrictive theory
and not departments of Government under
“Restrictive theory” arises from the willingness of States to enter into commercial, or other private law, transactions with
Cuban law.The cargo on this ship was
being discharged in Valparaiso when there individuals. It appears to have two main foundations:
was a change of government in Chile, of • It is necessary in the interest of justice to individuals having such transactions with States to allow them to bring such
which Cuba disapproved. Under the order
of the trading company, the ship left transactions before the courts;
Valparaiso without discharging the • To require a State to answer a claim based upon such transactions does not involve a threat to the dignity of that State, nor
remainder of its cargo and those goods any interference with its sovereign functions.
was later sold to someone else in Cuba.
3. The second ship (Marble Islands), which
was on the high seas on its way to Nature of the acts considered
Valparaiso when the change of government
As a means for determining the distinction between acts jury imperii and jury gestionis one should rather refer to the nature of
occurred in Chile, was ordered by the
trading company, on Cuban Government the state transaction or the resulting legal relationships, and not to the motive or purpose of the state activity. It thus depends
instructions, to sail to North Vietnam. upon whether the foreign state has acted in exercise of its sovereign authority, that is in public law, or like a private person, that
During the journey, it became a Cuban
ship owned by the Cuban Government. On is in private law
arrival in Haiphong, the cargo was sold by
the master, on behalf of the trading Burdens of proof
company to a third Cuban State trading
enterprise and was donated by the • Under the 'restrictive' theory the court has first to characterise the activity into which the defendant state has entered. Having
purchaser to North Vietnamese people. It done this, and (assumedly) found it to be of a commercial, or private law, character, it may take the view that contractual
was proved that these actions were taken
breaches, or torts, prima facie fall within the same sphere of activity.
in accordance with Cuban Government
instructions. • It should then be for the defendant state to make a case that the act complained of is outside that sphere, and within that of
4. In this case, the I Congreso (a third ship) sovereign action.
owned by Cuban Government, was arrested
in British waters on the application of the • In order to withdraw its action from the sphere of acts done jure gestionis, a State must be able to point to some act
Chilean owners of the cargoes of the first clearly done jure imperii.
and second ship, who had instituted
proceedings in rem in English HC for
breach of contract (non-delivery) and in
62
tort (for detinue or conversion).
5. The Cuban Government entered a defence
of State immunity.
Held, the second ship enjoyed immunity while
the first did not.

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1. In 1975, the Central Bank of Nigeria
issued a letter of credit in favour of
the plaintiffs, a Swiss company, for the
price of cement to be sold by the plaintiffs Trendtex Trading Corp. v Central Bank of Nigeria [1977] QB 529
to an English company which had secured To check whether the organisation was under the government control and exercised governmental functions
a contract with the Nigerian Government
to supply it with cement for the ➡ Need to look into the functions and control of the organisation.
construction of an army barracks in
Nigeria.
2. When, under the instructions from the NOTE: the case will not be so decided under s 14 State Immunity Act 1978 (UK).
Nigerian Government, the bank refused to
honour the letter of credit, the plaintiff Holland v Lampen-Wolfe [2000]
brought an action in personam against the
bank in the English HC. Where the immunity applies, it covers an official of the State in respect of acts performed by him in an official capacity.
Held, judgment for the plaintiff. • The defendant was responsible for supervising the provision of educational services to members of the United States armed
1. The plaintiff, a US citizen, taught, forces in the UK and their families.
under an agreement between the US
Government and the American University • He published the material alleged to be defamatory in the course of his duties.
at which she was a professor, an • If the provision of the services in question was an official or governmental act of the US, then so was its supervision
international relations course to US
military personnel and their families at a by the defendant.
US military base in England. • Therefore, the defendant was held as acting as an official of the US in the course of the performance of its
2. She brought defamation proceedings sovereign function of maintaining its armed force in this country.
against the defendant, a US citizen, who
was a civilian employed by the US
UN Convention on Jurisdictional Immunities of States and Their Property 2004

Department o Defence as an education
services officer at the base who had
written a memorandum containing
criticisms of the plaintiff ’s teaching. Who enjoys immunity? art.2(1)(b)
3. The US claimed immunity on the
defendant’s behalf.
(i) the State and its various organs of government
The Court considered the nature of the (ii)constituent units of a federal State or political subdivisions of the State, which are entitle to perform acts in the exercise of
provision of the service and held it belonged the sovereign authority and are acting in that capacity;
to an act of the State.
(iii)agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually
performing acts in the exercise of sovereign authority of the State;
(iv)representatives of the State acting in that capacity.
Definition of “commercial transaction: art.2(1)(c)
(i) any commercial contract or transaction for the sale of goods or supply of services;
(ii)any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in
respect of any such loan or transaction;
(iii)any other contract or transaction of a commercial, industrial trading or professional nature, but not including a contract of
employment of persons.
• In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should
be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the
parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is
relevant to determining the non-commercial character of the contract or transaction.
State enterprise ≠ State: art.10(3)
• Where a State enterprise has an independent legal personality and is capable of
• suing or being sued; and
• acquiring, owning, or possessing and disposing of property, including property which that State has authorised it to
operate or manage,
➡ is involved in a proceedings relating to a commercial transaction, State immunity cannot be invoked.
General principle of immunity: art.5
• A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the Courts of another State.
Waive of immunity
✴ Express waiver: art.7
• by international agreement
• in a written contract
• by a declaration before the court or by a written communication in a specific proceeding.
✴ Implied waiver
• itself instituted the proceedings: art.8
• intervened in the proceeding or took any other steps relating to the merits (with exceptions): art.8
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• counterclaims: art. 9
Restrictive immunity: art.10
• If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable
rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court
of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial
transaction.
• Do not apply
• Commercial transactions directly between States;
• If the parties to the commercial transaction have expressly agreed otherwise.
State Immunity and Human Rights Violation
Criminal jurisdiction
✴ Over an ex-head of State
• A current head of State has complete immunity ratione personae from criminal prosecution: Ex Parte Pinochet
• A former head of State has a limited functional immunity (ratione materiae) from criminal prosecution: Ex Parte
Pinochet
‣ Nature of the Crime --> Private or Stage agent?
- The commission of a crime which is a gross human rights violation by State officials and a jus cogens, for
example, torture, cannot be regarded as an act done in an official capacity on behalf of the State.
✴ Over a Minister of Foreign Affairs: Arrest Warrant case.
• General rule: throughout the duration of his office, he when abroad, enjoys full immunity from criminal jurisdiction
and inviolability.
‣ This immunity and inviolability protect the individual concerned from any act of authority of another state which
would hinder him or her in the performance of his or her duties:
- There can be no distinction from acts which were performed in an “official” capacity and in a “private”
capacity.
• However, the immunity does not represent a bar to criminal prosecutions in the following circumstances:
‣ Such ministers enjoy no criminal immunity under international law in their own countries;
‣ Such ministers will cease to enjoy immunity from foreign jurisdiction if the States which they represent or have
represented decides to waive that immunity;
‣ After a minister ceases to hold his office, he or she will no longer enjoy any of the immunities accorded by
international law in other States. Provided that it has jurisdiction under international law, a court of one State
may try a former Minister 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.
‣ An incumbent or former Minister may be subject to criminal proceedings before certain international courts,
where they have jurisdiction.
Civil Jurisdiction
• The breach of a jus cogens norm of international law does not suffice to confer jurisdiction: Jones v Ministry of the
Interior.
• State is still entitled to enjoy immunity in respect of civil claims for damages for alleged torture committed outside
the forum State: Al-Adsani case
• A foreign State might be put in international courts for criminal conduct, but not civil act.: Ex Parte Pinochet
• However, consistent with the doctrine of restrictive immunity of foreign states, a person who is currently serving as a
1. In 1973, a right wing military coup
led by the applicant overthrew the left head of state may arguably be sued (i.e., subjected to civil liability) to the extent that the civil suit in question
wing Chilean Government.The applicant, concerns commercial acts not taken in an official capacity (acts iure gestionis)(as for diplomatic heads of mission)
Pinochet, subsequently became Head of (see, e.g., Arts. 1(b)(iv) of the UN Convention on Jurisdictional Immunities of States (2004; not yet in force)
State of Child until 1990.
2. In 1998, while he was visiting the UK for
medical treatment, Spain requested Ex Parte Pinochet [2000]
Pinochet’s extradition to face charges, inter
alia, of torture and conspiracy to torture in
Double criminality doctrine; sovereign & functional immunity.
the Spanish courts. Not all the crimes as charged are extradition crimes, so, Pinochet can be extradited WITH REGARD TO charges after Sept. 29,
3. The applicant argued that he had 1988 (date when Torture became a crime in the UK). Principle of Double Criminality requires that the conduct complained of
immunity from prosecution as a former
64
head of State.
Held, the extradition should be allowed
because some of the charges were being
committed by Senator Pinochet after
December 1988 when he lost his immunity.

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must constitute a crime under the law of both Spain and of the UK. The relevant date is the conduct date -->meaning, that the
conduct should be a crime in the UK at the time it was committed, and not at the time the extradition was sought (request
date).
Immunity ratione personae

The immunity enjoyed by a head of State in power and an ambassador in post is a complete immunity attaching to the person
of the head of State or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to
matters done for the benefit of the State. Such immunity is said to be granted ratione personae.
Effects of art.39(2),Vienna Convention on Diplomatic Relations (1961)

The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae
while he was in post.
• Since he is no longer the representative of the foreign State he merits no particular privileges or immunities as a person.
• However, in order to preserve the integrity of the activities of the foreign State during the period when he was ambassador, it
is necessary to provide that immunity is afforded to his official acts during his tenure in post.
• The limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete
immunity to all activities whether public or private.
Whether the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official
capacity on behalf of the State?
The existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of
State torture could not rank for immunity purposes as performance of an official function. Rationale:
• The Torture Convention did provide a worldwide universal jurisdiction and required all member States to ban and outlaw
torture.
• Since Chile, Spain and the UK are all parties to the Convention, they are bound under treaty by its provisions WON such
provisions would apply in the absence of treaty obligation. Chile ratified the Convention with effect from Oct. 30, 1988 and the
UK with effect from Dec. 8, 1988.
✴ In terms of ratione personae, an essential feature of the international crime of torture is that it must be committed “by or
with the acquiescence of a public official or other person acting in an official capacity”. --> As a result all defendants in
torture cases will be the State officials.
• Yet, if the former head of State has immunity, the man most responsible will escape liability while his inferiors who
carried out his orders will be liable. --> unacceptable.
✴ In terms of ratione materiae an official enjoyed for those acts done in his office, immunity applies not only to ex-heads of
1. The applicant, who held UK and State and the ex-ambassadors but to all State officials who have been involved in carrying out functions of the State.
Kuwaiti nationality, was thought by a
relative of the Emir of Kuwait to have been • If that applied, and because under the Convention, the crime must be committed by an official or someone in an
responsible for the circulation of video official capacity. --> They would all be entitled to immunity.
containing sex scenes involving him. • It would follow that there can be no case brought outside Chile in which a successful prosecution for torture can
2. The applicant alleged that, in retaliation, he
was taken by the Sheikh by Government be brought unless the State of Chile is prepared to waive its right to its officials’ immunity.
transport to the Kuwait state security Conclusion: former head of state will not enjoy the immunity in regards of torture committed during his office.
prison where he was badly beaten by State
security guards.
3. On May 7, he was taken to a royal palace Al-Adsani v United Kingdom (2001)
where his head was placed under water in Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the
a swimming pool containing dead bodies
and where he suffered severe burns when
international instruments judicial authorities or other materials before it any firm basis for concluding that, as a matter of
they set fire to mattresses in a cell in international law, a State no long enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.
which he was detained.
4. The applicant was treated in London for
his burns and he was also diagnosed there The Arrest Warrant Case
as suffering from post-traumatic stress
disorder.The applicant alleged that while in
London he received threats from the Australian Law and Practice
Kuwaiti Ambassador.
5. The applicant brought civil proceedings in
the English HC against the Government of
Foreign States Immunity Act 1985
Kuwait for damages for the physical
injuries and mental suffering caused by the General Rule
assaults in Kuwait and the threats made in
London. 65
Held, Kuwait’s responsibility as to the threats
in England had not been established. As to the
assault made in Kuwait, Kuwait’s claim to
state immunity succeeded.

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Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding:
s9
Exceptions
A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section -->
waiver: s 10
A foreign State is not immune in a proceeding in so far as the proceeding concerns a commercial transaction: s 11
• Commercial transaction means a commercial, trading, business, professional or industrial or like transaction into which the
foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the
foregoing, includes: s 11(3)
(a) a contract for the supply of goods or services;
(b) an agreement for a loan or some other transaction for or in respect of the provision of finance; and
(c) a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill
of exchange.
A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person
under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia: s 12
A foreign State is not immune in a proceeding re: death of, or personal injury to, a person or loss of or damage to tangible
property caused by an act or omission in Australia: s.13
A foreign State is not immune in a proceeding re: immovable property in Australia; bankruptcy, insolvency or winding up of a
body corporate; admin. of a trust or estate: s 14
Immunity from execution

General rule: s 30
• Except as provided by this Part, the property of a foreign State is not subject to any process or order (whether interim or
final) of the courts of Australia for the satisfaction or enforcement of a judgment, order or arbitration award or, in
Admiralty proceedings, for the arrest, detention or sale of the property.
Exceptions:
• A foreign State may at any time by agreement waive the application of section 30 in relation to property, but it shall not
be taken to have done so by reason only that it has submitted to the jurisdiction: s 31
• Immunity not apply to commercial property: s 32
• Execution against immovable property or property acquired by succession or gift: s 33
No fine or committal may be imposed re: failure of a foreign State or person acting on a foreign State’s behalf to comply with
a court order: s. 34
ss. 30-35 applies as it applies to the foreign State: s 35
• in relation to a ‘separate entity’ of a foreign State that is the central bank or monetary authority of the foreign State
• to other separate entities that have submitted to jurisdiction, which would have been immune but for submission to
jurisdiction
Diplomatic Immunity
Basis for diplomatic immunity (justification for the immunity)

• ‘Exterritoriality’ theory
‣ The premises of the mission represent a sort of extension of the territory of the sending State.
• ‘Representative character’ theory
‣ The diplomatic mission personifies the sending State.
• ‘Functional necessity’ theory
‣ It is necessary to enable the mission to perform its function.
‣ The organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary
for the fulfilment of its purposes: art. 105(1) UN Charter
Immunity is not absolute. International immunity may well bar prosecution for certain period or for certain offences, it cannot
exonerate the person to whom it applies from all criminal responsibility: Arrest Warrant case
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17
Vienna Convention on Diplomatic Relations 1961
Preconditions to application of the VCDR

Have diplomatic relations between the sending and receiving states been established “by mutual consent” and maintained: art.
2
Whether the person or property concerned is within the scope of the Convention: art. 1 (pp296)
Whether the sending and receiving State are both parties to the Convention?
• If not, look to customary international law.
Appointment of members
Appointment of members of staff “freely” determined by the sending State: art. 7, subject to the following exception:
One who is not welcome • A person may be declared “persona non grata” or not acceptable by the receiving State: art. 9, or
• The receiving State may limit mission size and (non- discriminatorily) refuse to accept officials of a particular category:
art. 11
Jurisdictional immunity
Diplomatic agent
Definition of Diplomatic agent: art. 1(e)
‣ the “head of the mission”, or
• is the person charged by the sending State with the duty of acting in that capacity: art. 1(a), including three classes:
art.14
- that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;
- that of envoys, ministers and internuncios accredited to Heads of State;
- that of chargés d’affaires accredited to Ministers for Foreign Affairs.
‣ a member of the diplomatic staff of the mission.
• “member of the staff of the mission” are members of the diplomatic staff, of the administrative and technical staff
and of the service staff of the mission: art. 1(c)
- Only the first class in art.1(c) is regarded as “diplomatic agents”, others will have less immunity as against
diplomatic agents.
Inviolability: art. 29
• No arrest or detention
• Duty of receiving State to prevent attack on person, freedom or dignity
• Inviolability extends to agent’s papers, correspondence: art. 30(2)
• No obligation to give evidence as a witness: art. 31(2)
Immunity of jurisdiction
• Immunity of diplomatic agent from criminal prosecution by receiving State: art. 31(1) -- unqualified, no exception
• Immunity of diplomatic agent from civil and administrative jurisdiction, subject to the following exceptions: art.31(1)
- a real action relating to private immovable property situated in the territory of the receiving State, hold not on behalf
of the sending State: (a)
- an action relating to succession and the diplomatic agent is involved as executor, administrator, heir or legatee as a
private person: (b)
- an action relating to any professional or commercial activity outside his official functions: (c)
★ The measures taken in these exceptions shall not entail infringing inviolability of person or residence: art. 31(3)
• A diplomatic agent that is a national or permanent resident of the receiving State will usually only be immune and
inviolable in respect of “official acts performed in the exercise of his [or her] functions”: art. 38(1)
Immune persons other than diplomatic agents
17 Case Materials, page 296.

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Categories Definition Immunity: art. 37(1)-(4)
Members who: art. 37(1) • Privileges and immunities from arts. 29-36 (i.e.,
Diplomatic agents’ family (a) form part of the diplomatic agent’s household; inviolability, immunity from criminal/civil
members and jurisdiction, exemption from taxes and customs
(b) are not receiving State nationals duties)
Members of the staff of the mission employed in • Enjoy privileges and immunities from art. 29-35
Administrative and technical • No exemption from custom duties re art.36
the administrative and technical service of the
staff • Civil / administrative immunity only extends to
mission: art. 1(f)
acts within “the scope of their duties”.
• No inviolability
• Immunity only extends to “acts performed in
Members of the staff of the mission in the domestic the course of their duties”.
Service staff
service of the mission: art. 1(g) • Exempt from dues and taxes on remuneration
from employment and concerning social
security payments
• Exempt from dues and taxes on remuneration

from employment
Persons who are in the domestic service of a • Other privileges and immunities that may be
Private servants member of the mission and who are not employees admitted by the receiving State
of the sending State. • But any exercise of jurisdiction over them must
not interfere “unduly” with the performance of
functions of the mission
Premises of the mission

Definition of Premises of the mission: art. 1(i)
• buildings or parts of buildings and the land ancillary thereto
• irrespective of ownership
• used for purposes of the mission
‣ Functions of the mission include those set out in art. 3: representing the sending State in the receiving State,
promoting friendly relations etc.
• Including the residence of the head of the mission (but not the residences of other diplomatic agents)
Inviolability: art. 22
• No entry of mission premises by receiving State agents without consent.
‣ Arguably, whether a head of mission should co-operate with the investigation in case of an emergency: 18 Libyan
People’s Bureau Incident
‣ The premises of the mission should not be used “in any manner incompatible with the functions of the mission”: art.
41(3)
• No search, requisition, attachment or execution of mission premises, furnishings or property on mission premises and
means of transport.
• “Special duty” of receiving State to prevent intrusion, damage or disturbance of the peace.
‣ Well-settled customary international law.
‣ However, in Libyan People Bureau Incident, it was said that the requirement for the fulfilment of the “special duty”
was that “work at the mission can continue normally, that there is untrammelled access, and that those within the
mission are never in fear that the mission might be damaged or its staff injured”, otherwise, the receiving party may
breach the obligation specified in art. 22.19
• Private residence of a diplomatic agent enjoy “the same inviolability and protection”: art. 30(1)
• Archives and documents of the mission inviolable wherever they may be: art.24
• Official correspondence inviolable; diplomatic bag must not be opened or detained: art. 27
‣ The packages constituting the diplomatic bag must bear visible external marks of their character and may contain
only diplomatic documents or articles intended for official use: art. 27(4)
18 Case Material, page 304.

19 Case Material, page 308.
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Waiver of immunity
The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the
sending State: art. 32(1).
• Waiver must always be express: art. 32(2)
• The initiation of proceedings by such person shall preclude him from invoking immunity from jurisdiction in respect of any
counterclaim directly connected with the principal claim: art. 32(3)
• Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgement: art. 32(4)
• A Separate waiver shall be necessary.
Duty to respect the laws and regulations of the receiving State law & not interfere in internal affairs: art. 41(1)
• But this obligation is ‘without prejudice to...privileges and immunities’, so breach of this obligation does not amount to
waiver or negation of immunity
Duration of immunity: art. 39

Duration of immunity limited
• From moment of entering territory to take up post or appointment’s notification to receiving State
• Until departure from the country or expiration of “a reasonable period within which to do so”
However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission,
immunity shall continue to subsist: art. 39(2)
• Officials acts performed by a protected person are permanently immune.
• Private acts performed by a protected person are contingent, supplementary and immunity will terminate when the
individual concerned leaves their post.
Third State’s obligations: art. 40

To accord diplomatic agents and their family members passing through their territory “inviolability and such other immunities
as may be required to ensure his [or her] transit or return”: (1)
Not to hinder the passage through their territories of members of the administrative, technical or service staff of a mission
and of their families: (2)
To accord official correspondence and communications in transit the same protection as is accorded to the receiving state: (3)
Diplomatic immunity in Australia

Diplomatic Privileges and Immunities Act 1967 (Cth)
Vienna Convention on Diplomatic Relations to have force of law: s 7
• Article 1
• Article 22-24
• Article 27-40
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10. The Law of State Responsibility
Introduction
The law of responsibility is concerned with the incidence and consequences of unlawful acts, and particularly the forms of
reparation for loss caused.
The ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (ARSIWA) emphasises on the secondary
rules of State responsibility:
• Primary: Substantive rules
• Secondary: Conditions under which a primary rule will be considered to have been breached and consequences
- Defences
- Circumstances precluding wrongfulness
- Types of reparations an injured state may demand
General rules set forth in the ILC Articles may be displaced/overridden by a more detailed or specific agreement/instrument
establishing different rules: art. 55
Under international law, a reparable claim against a State will arise when:
• an act or omission (or a series of acts/omissions);
• that is attributable to a State;
• violates an international legal obligation binding upon that State or an international legal duty owed by that State to one
or more other State(s);
• and there is no international legal justification for the State’s act(s) or omission(s);
• and a State with a right to protest the wrong elects to raise/pursue that claim (e.g., by exercising a right of diplomatic
protection);
• and the violation has caused the claimant State or its nationals injury/loss (necessary for reparation/recovery);
• and, in the case of injury to a claimant State’s nationals (as distinct from injury to the State itself), local remedies in the
defendant State have been exhausted.
General Principles
Every internationally wrongful act of a State entails the international responsibility of that State: ARSIWA art.1
• Customary rule?
‣ Must have existed at the time of the offending state action/omission and state must not have been a persistent
objector.
• Treaty rule?
‣ Offending state must be a party to the relevant treaty and that treaty must have entered in force against the
offending state at the time of the state action/omission in question.
• General principle?
‣ Must have existed as such at the time of the offending state action/omission.
• A peremptory (jus cogens) norm?
‣ If a peremptory norm has been breached, and if the state’s breach of that norm is “serious” (“gross or systematic
failure” to fulfil obligation (Art. 40)), particular consequences arise, including a requirement that all states refrain
from “recognising as lawful a situation created by a serious breach” and from “render[ing] aid or assistance in
maintaining that situation” (Art. 41)
Elements: ARSIWA art.2
✴ There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) Is attributable to the State under international law; and --> not a private act
(b) Constitutes a breach of an international obligation of the State. --> binding obligation
• Cases relating to omission: Corfu Channel case.
• It is a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its
territorial waters and did nothing to warn third States of their presence.
• “Damage” to another State is not necessary, depending on the content of the primary obligation, and there is no general
rule in this respect.
• Intention, i.e., fault is not an element of State responsibility.
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Characterisation of an act of a State as internationally wrongful: ARSIWA art.3, two aspects:

• An act of a State cannot be characterised as internationally wrongful unless it constitutes a breach of an international
obligation;
• A State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterisation of
that conduct as wrongful by international law.
Attribution to the State
Conduct of organs of a State

When the conduct of a organ is considered as the conduct of a State? ARSIWA art.4
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever position it holds in the organisation of the State, and whatever its
character as an organ of the central government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
• Type of State organ unlimited:

‣ A State organ extends to organs of government of whatever kind or classification, exercising whatever functions, and
at whatever level in the hierarchy, including those at provincial or even local level.
• Motive of the offender unrelated:
‣ Where a person who is a State organ acts in that capacity, i.e., the person acts in an apparently official capacity, or
1. First, the act of an official acting in a under colour of authority, the actions in a question will be attributable to the State: Mallen case (1927)
private capacity; and secondly, another • It is irrelevant for this purpose that the person concerned may have had ulterior or improper motives or may be
at committed by the same official in his
official capacity, although in an abusive
abusing public power.
way. • Hierarchy in the official capacity not related:
2. The latter action was, and the former was ‣ Governmental action or omission by the executive gives rise to international responsibility. The distinction between
not, held attributable to the State.
higher and lower officials has no significance in terms of responsibility: Massey (1927)
• Generally, a federal State is responsible for the breach of its constituent units: Pellat case (1929); LaGrand case (1999)
• Exceptions where federal States is not responsible for constituent units:
- Where the constituent unit of a federation is able to enter into international agreements on its own accounts;
- Where the responsibility of the federal State under a treaty may be limited by the terms of a federal clause in
the treaty.
Ultra vires: ARSIWA art.7
• The lack of express authority cannot be decisive as to the responsibility of the State.
• State may be responsible for ultra vires acts of their officials committed within their apparent authority or general scope
of authority, regardless of whether the official or organ has acted within the limits of his competency or has exceeded
those limits: Caire (1929)
• Need to be distinguished from the cases where the conduct is so removed from the scope of their official functions
that it should be assimilated to that of private individuals, not attributable to the State.
• However, if the “private” conduct may be avoided if the conduct complained of is systematic or recurrent, such
that the State knew or ought to have known of it and should have taken steps to prevent it, it may still be
attributable to the State.
★ What really matters, however, is the amount of control which ought to have been exercised in the
particular circumstances, not the amount of actual control (in preventing the breach): Henriquez (1903)
Individual or Group
Entities not formally state organs may still engage the responsibility of the latter when ‘empowered by the law of that State to
exercise elements of the governmental authority’ and so long as they are ‘acting in that capacity in the particular instance’:
ARSIWA art.5
• Entities may include public corporations, semi-public entities, public agencies of various kinds and even, in special cases,
private companies.
• What is regarded as “government” depends on the particular society, its history and traditions.
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★ Query whether the entity acts on the instruments of, or under the direction or control of the State: Genocide (Bosnia
and Herzegovina v Serbia and Montenegro)
• The content of the power;
• The way the power are conferred on an entity;
• The purpose for which the power are to be exercised
• The extent to which the entity is accountable to government for their exercise.
Private acts attributable to a State where:
• A person or a group of persons act in fact on the instructions of, or under the direction or control of the State: ARSIWA
art.8
• Include individuals or group of private individuals.
• Significant financial support alone does not amount to ‘control’: Nicaragua Case (Merits)
• Based on actual participation of and directions given by the State: Prosecutor v Tadic (1999)
• As to article 8, conduct will be attributable to the State only if it directed or controlled the specific operation and the
conduct complained of was an integral part of that operation.
• The principle does not extend to conduct which was only incidentally or peripherally associated with an
operation and which escaped from the State’s direction or control.
• Levee en masse
• The conduct of a person or group of persons shall be considered an act of a State under international law if the
person or group of persons is in fact exercising elements of the governmental authority in the absence or default of
the official authorities and in circumstances such as to call for the exercise of those elements of authority: ARSIWA
art.9, see Yeager v Iran (page 430)
• Insurrectional movement
• The general principle that the conduct of an insurrectional or other movement is not attributable to the
State...on the assumption that the structures and organisation of the movement are and remain independent of
those of the State...Exceptional case may occur where the State was in a position to adopt measures of vigilance,
prevention or punishment in respect of the movement’s conduct but improperly failed to do so: ARSIWA art.10
• Purely private conduct cannot as such be attributed to a State. But the conduct is to be considered as an act of a State
“if and to the extent that the State acknowledges and adopts the conduct in question as its own”: ARSIWA art.11
• Accordingly, if the successor State, faced with a continuing wrongful act on its territory, endorses and continues that
situation, the inference may readily be drawn that it has assume responsibility for it: Lighthouses
• “The approval given to [the US Embassy occupation and detention of US hostages] by the Ayatollah Khomeini and
other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the
Embassy and detention of the hostages into acts of that State”: US Diplomatic & Cons. Staff in Tehran case20
Responsibility for the consequences of insurrection or rebellion21

A State on whose territory an insurrection occurs is not responsible for loss or damage sustained by a foreigner unless it can
be shown that the Government of that State was negligent in the use of, or in the failure to use, the forces at its disposal for
the prevention or suppression of the insurrection.
This is a variable test, dependent on the circumstances of the insurrection.
Such a State is not responsible for the damage resulting from military operation directed by its lawful government unless the
damage was wanton or unnecessary, which appears to be substantially the same as the position of belligerent States in an
international war.
Such a State is not responsible for loss or damage caused by the insurgents to a foreigner after that foreigner’s State has
recognised the belligerency of the insurgents;
Such a State can usually defeat a claim in respect of loss or damage sustained by resident foreigners by showing that they
have received the same treatment in the matter of protection or compensation, if any , as its own nationals.

21 Brownlie’s, page 552. McNair.
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Breach of Obligation
There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required
of it by that obligation, regardless of its origin or character: ARSIWA art.12
• There is no distinction between “civil” and “criminal” responsibility.
• Breach is not relevant to intention.
Bound by the obligation in question at the time the act occurs: ARSIWA art.13
• The general principle of intertemporal law: Island of Palmas case
Internal law cannot justify failure to comply with international obligations: ARSIWA art.32
Responsibility of a State in Connection with the Act of Another State
Wrongful conduct by a State organ placed at the disposal of the defendant State by another State provided that the organ in
question is ‘acting in the exercise of the governmental authority’ of the defendant State: ARSIWA art.6
• Mere aid or assistance offered by organs of one State to another on the territory of the latter is not covered by this
article.
• For example, armed forces may be sent to assist another State in the exercise of the right of collective self-defence
or for other purposes.
State aids or assists another State in committing an internationally wrongful act: ARSIWA art.16
• The obligation not to use force may also be breached by an assisting State through permitting the use of its territory by
another State to carry out an armed attack against a third State.
• The obligation not to provide aid or assistance to facilitate the commission of an internationally wrongful act by another
State is not limited to the prohibition on the use of force.
States directs and controls another State in the commission of an internationally wrongful act: ARSIWA art.17
• Scenarios: by treaty; or as a result of a military occupation; or for some other reason.
States coerces another State to commit an internationally wrongful act: ARSIWA art.18
Defences for Wrongfulness
Consent: ARSIWA art.20

✴ Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in
relation to the former State to the extent that the act remains within the limits of that consent.
Self-defence: ARSIWA art.21
• As to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-
defence does not preclude the wrongfulness of the conduct.
Countermeasures: ARSIWA 22
Force majeure: ARSIWA art.23
✴ The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the
act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of
the State, making it materially impossible in the circumstances to perform the obligation
• Force majeure differs from a situation of distress or necessity because the conduct of the State which would otherwise be
internationally wrongful is involuntary or at least involves no element of free choice.
• “Unforeseeable” required, causation of force majeure:
• due to a natural or physical event
• due to human intervention, or
• due to some combination of the two
• Force majeure does not include circumstances in which performance of an obligation has become more difficult, for
example due to some political or economic crisis.
• Nor force majeure covers situations brought about by the neglect or default of the State concerned, even if the resulting
injury itself was accidental and unintended.
Distress: ARSIWA art.24
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✴ The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the
author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives
of other persons entrusted to the author’s care.
• The State acts voluntarily.
• The interest concerned is the immediate one of saving people’s lives, irrespective of their nationality.
• In practice, cases of distress have mostly involved aircraft or ships entering State territory under stress of weather or
following mechanical or navigational failure.
1. France sought to justify its conduct in • In Rainbow Warrior arbitration, it was held a broader view of the circumstances justifying a plea of distress, i.e., a
removing the two officers from the serious health risk would suffice.
island of Hao on the ground of Necessity: ARSIWA art.25
“circumstances of distress in a case of
extreme urgency involving elementary • The plea of necessity does not depend on the prior conduct of the injured State. (unlike consent, self-defence,
humanitarian considerations affecting the countermeasures)
acting organs of the State”.
• Voluntary action. (unlike force majeure)
• Unlike distress, necessity consists in a grave danger either to the essential interests of the State or of the international
community as a whole.
• Where necessity cannot be relied on:
• Where the international obligation in question explicitly or implicitly excludes reliance on necessity: (2)(a)
• If the responsible State has contributed to the situation of necessity: (2)(b)
• Further restrictions: subject to strict limitations and can only be accepted on an exceptional basis: Gabcikovo-
Nagymaros Project case
• It is only when it is threatened by a grave and imminent peril that this condition is satisfied.
• The peril has to be objectively established and not merely apprehended as possible.
• In addition to be grave, the peril has to be imminent in the sense of proximate.
• The course of action taken must be the “only way” available to safeguard that interest.
• The plea is excluded if there are other means available, even if they may be more costly or less
convenient: Gabcikovo-Nagymaros Project case
Consequence of Internationally Wrongful Act
Major Consequence
• Cessation: refers to the basic obligation of compliance with international law, which in principle remains due in spite of
any breaches.
• Reparation: refers to all measures which may be expected from the responsible State, over and above cessation: it
includes restitution, compensation and satisfaction.
• Satisfaction refers to means of redressing a wrong other than by restitution or compensation.
• Countermeasures refers to the possibility for a State to resort to ‘private justice’ when its demands for cessation of an
illegal conduct and/or adequate reparation are not met by the wrongdoer. The wronged State may then respond by taking
measures which would in principle violate its duties to the later State, but which are regarded as lawful due to their
character as countermeasures.
General Stand
• Legal consequences of IWA do not affect continued duty to perform the obligation breached: ARSIWA art.29
Purpose of remedy
• The essential principle contained in the actual notion of an illegal act -- a principle which seems to be established by
international practice and in particular by the decisions of arbitral tribunals -- is that reparation must, as far as possible,
wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if
that act had not been committed: Chorzow Factory case
Cessation
✴ Obligation to cease the internationally wrongful act and to offer appropriate assurances and guarantee of non-repetition:
ARSIWA art.30
Two essential conditions intimately linked for the requirement of cessation of wrongful conduct to arise: Rainbow Warrior
arbitration
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• The wrongful act has a continuing character; and

• The violated rule is still in force at the time in which the order is issued.
Article 30 also encompasses situations where a State has violated an obligation on a series of occasions, implying the
possibility of further repetitions. (referred from “if it is continuing” (a))
Reparation
The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act:
ARSIWA art.31
• Aspect of reparation encompasses by “compensation” for an unlawful act -- that is, restitution or its value, and in addition
damages for loss sustained as a result of the wrongful act: Factory at Chorzow case
• Damages recovered:
‣ The responsible State must endeavour to “wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had not been committed”: Factory at Chorzow case
Injury includes any damage, whether • “Injury” is defined in art. 31(2), excluding merely abstract concerns or general interests of a State which is individually
material or moral, caused by the unaffected by the breach.
internationally wrongful act of a State: art.
31(2) ‣ “Material” damage refers to damage to property or other interests of the State and its nationals which is assessable
in financial terms.
‣ “Moral” damage includes such things as individual pain and suffering, loss of loved ones or personal affront
associated with an intrusion on one’s home or private life.
★ There is no general requirement of material harm or damage for a State to be entitled to seek some form of
reparation: Rainbow Warrior arbitration
- Therefore, reparation is available for those acts affecting the honour, dignity, or prestige of a State, even if those
acts have not resulted in a pecuniary or material loss for the claimant State.
• Causation and remoteness need to be proved, i.e., a sufficient causal link which is not too remote.
• A failure to mitigate by the injured party may preclude recovery to that extent: Gabcikovo-Nagymaros Project
Reparation shall take the form of restitution, compensation and satisfaction: ARSIWA art.34
• Restitution: ARSIWA art.35
‣ Two prerequisites:
- Not materially impossible (a)
✓ Material impossibility is not limited to cases where the object in question has been destroyed, in some
situation, third party’s interest will be taken into consideration: Forests of Central Rhodope case
- Not “involve a burden out of all proportion to the benefit deriving from restitution instead of compensation”. (b)
✓ Restitution is based on considerations of equity and reasonableness. If there is a grave disproportionality
between the burden which restitution would impose on the responsible State and the benefit which would
be gained, restitution will not be available.
• Compensation: ARSIWA art.36
‣ To the extent that such damage is not made good by restitution.
- Restitution, sometimes, may not be available, or may not be sufficient to ensure full reparation.
- No exemplary damages, punitive damages, just cover the loss.
‣ Damage is defined in article 31(2).
- Include both the material damage and non-material damage.
- Material losses, such as loss of earnings and earning capacity, medical expenses, etc.
- Non-material losses, i.e., moral damage, such as loss of loved ones, pain and suffering as well as the affront
to sensibilities associated with an intrusion on the person, home or private life: Lusitania case
‣ Difference between compensation and satisfaction
- Monetary payments may be called for by way of satisfaction under article 37, but they are different:
✓ Monetary compensation is intended to offset, as far as may be, the damage suffered by the injured State
as a result of the breach.
✓ Satisfaction is concerned with non-material injury, specifically non-material injury to the State on which a
monetary value can be put only in a highly approximate and notional way.
★ If it is predominantly that of seeking a token of regret and acknowledgement of wrongdoing then it is a
matter of satisfaction.
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• Satisfaction: ARSIWA art.37

• It is only in these cases where restitution and compensation have not provided full reparation that satisfaction may
be required. (“insofar as it cannot be made good by restitution or compensation: art.37(1))
• Satisfaction is the remedy for those injuries not financially assessable, which amount to an affront to the State:
Rainbow Warrior arbitration
• Examples include situations of insults to the symbols of the State; violations of sovereignty or territorial integrity;
ill treatment of or deliberate attacks on heads of State or Government or diplomatic or consular representative
or other protected persons, etc.
• Forms of satisfaction: may consist in an acknowledgement of the breach, an expression of regret, a formal apology or
another appropriate modality. (2) --> not an exhaustive list.
• Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible
State: (3).
Countermeasures
Injured State taking countermeasures against responsible state to induce compliance with obligation; limited to non-
performance at time of taking the countermeasures, in such a way as to allow resumption of performance: ARSIWA art.49
• Countermeasures may only be taken by an injured State in order to cease the internationally wrongful conduct.
‣ Countermeasures are not intended as a form of punishment for wrongful conduct but as an instrument for achieving
compliance with the obligations of the responsible State.
‣ Countermeasures may not be directed against States other than the responsible State.
‣ “For the time being” indicates the temporary or provisional character of countermeasures.
• States should as far as possible choose countermeasures that are reversible: Gabcikovo-Nagymaros Project case
‣ The duty to choose measures that are reversible is not absolute.
Obligation of the State taking countermeasures
• Countermeasures shall not affect: obligation to refrain from threat or use of force, fundamental human rights protection,
humanitarian obligations prohibiting reprisals and obligations under preemptory norms of general international law (1).
Further, a State taking countermeasures is not relieved from fulfilling its obligation, including under any dispute settlement
procedure applicable between it and the responsible State, and to respect the inviolability of diplomatic or consular
agents, premises, archives and documents (2): ARSIWA art.50
• Other obligations: ARSIWA art.52,
‣ The injured State shall:
- call on the responsible State to fulfil its obligations of cessation and reparation before any resort to
countermeasures: (1)(a)
- notify the responsible State of any decision to take countermeasures and offer to negotiate with that State: (1)
(b)
‣ The injured State may
- take “such urgent countermeasures as are necessary to preserve its rights”: (2)
‣ The injured State should not take countermeasures or should suspend countermeasures if
- the internationally wrongful act has ceased (3)(a)
- the dispute is pending before a court or tribunal which has the authority to make decisions binding on the
parties.
✓ The tribunal must be capable of exercising its function: High-Fructose Corn Syrup dispute
Proportionality of countermeasures, taking into account: ARSIWA art.51
• the gravity of the internationally wrongful act and the rights in question.
• The question of proportionality is central to the appreciation of the legality of possible countermeasures
‣ In Gabcikovo-Nagmaros Project case, the court held that Czechoslovakia by unilaterally assuming control of a shared
resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of
the Danube, was not a lawful countermeasure because it was not proportionate.
• Proportionality must be assessed taking into account not only the purely ‘quantitive’ element of the injury suffered, but
also ‘qualitative’ factors such as the importance of the interest protected by the rule infringed and the seriousness of the
breach.
Termination of a countermeasure
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• Countermeasure shall be terminated as soon as the responsible State has complied with its obligations: ARSIWA art.53
Serious Breach under Peremptory Norms of General International Law
Two main concepts in regards of serious breach under erga omnes

• Serious breaches of obligations arising under preemptory norms of general international law can attract additional
consequence, not only for responsible States but for all other States.
• All States are entitled to invoke responsibility for breaches of obligations to the international community as a whole.
Erga omnes arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable: Barcelona
Traction
• Acts of aggression
• Acts of genocide
• Use of force, war crimes.
• Principles and rules concerning the basic rights of the human person, including protection from slavery and racial
discrimination
• The obligation to respect the right of self-determination.
“Serious” is defined in art. 40(2) as one which involves “a gross or systematic failure by the responsible State to fulfil the
obligation” in question.
Obligation of the States for those serious breach: ARSIWA art.41
• States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. (1)
‣ A positive duty to cooperate in order to bring to an end serious breaches.
‣ Such cooperation must be through lawful means.
‣ Obligation to cooperate applies to States whether or not they are individually affected by the serious breach.
• No States shall recognise as lawful a situation created by a serious breach within the meaning of article 40, not render
aid or assistance in maintaining that situation. (2)
‣ Non-recognition of acts in breach of preemptory norms.
- Non-recognition of the denial by a State of the right of self-determination of peoples: Namibia (South West
Africa)
- Prohibition from rendering aid or assistance goes beyond the extent covered by article 16.
✓ “Aid or assistance” is to be read in connection with art. 16.
• However, there is no need to mention a requirement (which is mentioned in art. 16) that the State
has “knowledge of the circumstances of the internationally wrongful act.
Invocation of the Responsibility of a State
Injured State: ARSIWA art.42

Injured State invoking another’s responsibility, if breach is owed to:
a. the State individually
b. group of State, including injured one, or international community as a whole and the breach:
i. specially affects the State
ii.so radically changes the position of other states WITH REGARD TO further performance of the obligation
Non-injured State: ARSIWA art.48

Non-injured State invoking responsibility
• obligation breached is owed to group of states, including that State, and is established for protection of collective interest,
• obligation owed to international community as a whole. (1)(b)
• Claim under first part: for cessation & promise of non-repetition, & reparation, for the injured State or of beneficiaries. (2)
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11. The Treatment of Aliens
An injury to the State
An injury to a national is an injury to the State itself, and accordingly, the injured State is entitled to bring a claim against the
responsible State to protect itself: Mavrommatis Palestine Concessions case (1924)
The diplomatic protection is a matter of discretion for the national State: Administrative Decision No.V
• The diplomatic protection is discretionary in customary international law: Kaunda v President of the Republic of South
Africa (2005)
• However, any limitation upon a State’s control or discretion at all stages of a case is a matter for municipal, not
international law: R. (Abassi) v Secretary of State for Foreign and Commonwealth Affairs [2002]
1. The dispute relates to Palestine and Mavrommatis Palestine Concessions case (Jurisdiction)
Britain’s wrongful refusal to recognise Greece v U.K. (1924)
Mavrommatis’ rights acquired under Disputes, defined.
contracts for public works to be done in
Palestine. Greece took up Mavrommatis’ • A dispute is defined as a “disagreement on a point of law or fact, a conflict of legal views or of interests between 2 persons.”
case as it is a Greek subject.
2. Greece was asserting its rights by claiming
indemnity from Britain arguing that Britain
Capacity of a state to bring claims from acts contrary to international law committed by another state.
treated Mavrommatis in “a manner • A state can take up the case of its subjects when injured by acts contrary to international law committed by another State,
incompatible with certain international from whom they have been unable to obtain satisfaction through the ordinary channels. So WON a dispute originates in a
obligations which they are bound to
observe.” personal injury is irrelevant. Greece, in the eyes of Britain, is the sole claimant.
3. At first, the dispute was between a private
person (Mavrommatis) and a State
(Britain). But Greece took up Two Standards
Mavrommatis’ case so it is now a dispute
in international law.
Greece has the right to ensure respect for
“International minimum standard” -- developing country
rules of international law. It is not substituting • Criteria is that the acts should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of
itself with the citizen, but is actually asserting governmental action so far short of international standards that every reasonable and impartial man would readily
its own rights.
recognise its insufficiency: Neer Claim
“national standard” -- developed country
• A State is only responsible for damage caused by private persons to the persons or property of foreigners if it has
manifestly failed to take such preventive or punitive measures as in the circumstances might reasonably be expected of it
had the persons injured been its own nationals.
• Rationale: as a matter of international law, the standard of treatment is to be defined in terms of equality under the
local law.
1. US claims damages for Mexico’s Neer Claim

failure to exercise due diligence in US v. Mexico (1926)
finding and prosecuting the murderer of an International minimum standard.
American.
The claim was rejected. The proprietary of governmental acts should be put to the test of international standards, and that the treatment of an alien, in
order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an
insufficiency of governmental action so far short of international standards that every reasonable and impartial man would
readily recognise its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law OR from the
fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial.
Admission and Expulsion
A State may expel an alien whenever it wishes, provided it does not carry out the expulsion in an arbitrary manner: DR
Berger’s case (1961)
• Following examples of “arbitrary”:
‣ by using unnecessary force to effect the expulsion
‣ by otherwise mistreating the alien
‣ by refusing to allow the alien a reasonable opportunity to safeguard property.
• The requirement for “constructive expulsion”: International Technical Products Corp. v Ivan (1985)
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‣ The alien cannot reasonably be regarded as having any real choice; and
‣ There is an intention of having the alien ejected and
‣ These acts are attributable to the State in accordance with principles of State responsibility.
• It is usually accepted that the following expulsion is justified: (Goodwin-Gill, pp470 case book)
‣ for entry in breach of law;
‣ for breach of the conditions of admission;
‣ for involvement in criminal activities;
‣ in the light of political and security considerations.
A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling State’s action, in other words that it
was arbitrary, discriminatory, or in breach of the expelling State’s obligation: Rankin v Iran (1987)
According to British law, a stateless person will not be deported.
Whereas a State may exclude aliens in its discretion, it is obliged to admit its own nationals who have been expelled from
another State, at least where they have nowhere else to go.
1. The claimant was an American Rankin v Iran

national employed by BHI, an US v Iran (1987)
American company, in Iran at the time of
Burden of Proof
the fall of the Shah’s Government and its
replacement by the Islamic Revolutionary International law imposes certain restraints on the circumstances and the manner in which a State may expel aliens from its
Government in February 1979. territory.
2. On February 12, the day after the new
Government took office, the claimant, was ➡ A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling State’s action, in other words that it
requested to be evacuated from the was arbitrary, discriminatory, or in breach of the expelling State’s obligation.
country with other BHI employees whom
BHI had arranged to be repatriated.
3. The claimant claimed compensation for The tribunal finds that the Claimant has not satisfied the burden of proving that the implementation of the new policy of the
loss of salary and abandoned personal Respondent... was a substantial causal factor in his departure from Iran.
property resulting from his alleged
expulsion from Iran contrary to
Neither has the claimant satisfied the burden of proving that his decision to leave was caused by specific acts or omission of or
international law. attributable to the Respondent.
Held, no breach; the Revolutionary Guards Rather, the turmoil and generally chaotic conditions associated with this crucial stage of the Revolution would appear to have
were not insurrectionists; no proof that the
Guards coerced him to leave; he felt unsafe been the motivating factor in the Claimant’s decision to leave.
and freely decided to leave; no compensation.
Expropriation
Expropriation & Confiscation

• If compensation is not provided, or the taking is regarded as unlawful, the taking is sometimes described as confiscation.
Resolution 1803 --> accepted in a number of arbitration awards as reflecting customary international law
• Nationalisation, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the
national interest which are recognised as overriding purely individual or private interests, both domestic and foreign.
• In such cases the owner shall be paid appropriate compensation.
• In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State
taking such measures shall be exhausted.
• Upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through
arbitration or international adjudication.
Property, for the purpose of expropriation, may extend to contractual rights: Starret case
The meaning of a taking of property means a State’s interference with property rights to such an extent that these rights are
rendered so useless: Starret case
• Modes of “taking of property” (Notes):
• by the transfer of title by law, as in the typical case of nationalisation or of the expropriation;
• by the physical seizure of property, for example, transfer under duress or by confiscatory taxation.
• by taking of the “effective use” of the property: Starret case
‣ Known as indirect or “constructive” expropriation:
- In the scenario of indirect expropriation, the intent of the government is less important than the effect of
the measures on the owner; and the form of the measures of control or interference is less important than
the reality of their impact --> (objective theory of state responsibility):Tippetts v TAMS-ATTA (1985)
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Difference between expropriation & regulation

• A State is not liable for economic injury which is a consequence of bona fide ‘regulation’ within the accepted police power
of States: Sedco Inc v N.I.O.C (1985)
• Accordingly, economic measures such as non-confiscatory taxation, exchange control regulation and currency
revaluation do not normally result in expropriation.
• In addition, the forfeiture of property as a criminal sanction is in principle lawful.
Elements of a lawful expropriation:
• Must have a public purpose: Amoco case
‣ It is sufficient for the expropriating home State to prove “the taking is done in pursuant of some public purpose”:
Amoco
✓ Examples for “not for the public purpose”:
- The only purpose of the expropriation is to avoid contractual obligations of the State or of an entity
controlled by it;
- The only purpose of the expropriation is for financial purposes
✓ However, those nationalisations for the purpose of obtaining a greater share, or even the totality, of the revenues
drawn from the exploitation of a national natural resource, is not regarded as being unlawful and illegitimate.
• Non-discrimination: Amoco case
‣ Not an absolute requirement.
• A coherent policy of nationalisation can reasonably be operated gradually in successive stages”.
• However, discrimination is reasonably related to the public purpose.
• Appropriate compensation: Amoco case; BP case
‣ Controversial issue in regards whether it is an essential element for legal expropriation, especially between developed
countries and developing countries.
- Developed countries: appropriate compensation as incorporating the “international minimum standard’
‣ Damages by way of reparation for any illegal expropriation may include lost profits, but limited only to the time of
judgment: Amoco case
In a case of illegal expropriation the ordinary rules of State responsibility apply: Amoco, Chorzow Factory and Aminoil cases
Stabilisation clauses
• The term ‘stabilisation clause’ relates to any clause contained in an agreement between a government and a foreign legal
entity by which the government party undertakes not to annul the agreement nor to modify its terms, either by legislation
or by administrative measures.
• There is no rule in international law absolutely precluding a home state from expropriating: Aminoil case
✓ An “internationalised” contract with a stabilisation clause may preclude the exercise of the expropriatory
1. In 1974, the claimant American prerogatives of the home state:Texaco v Libya (1978)
company, operating through Shah
Goli, an Iranian subsidiary company, ‣ Features of internationalisation of a contract:Texaco v Libya (1978)
entered into an agreement with an Iranian - Whether the contract refers to the general principles of international law
development bank to buy land in Iran and - Whether there is an arbitration clause
build houses upon it.
2. The project was proceeding on schedule - Whether there is a new category of agreements between the States and private persons, for example, an
when harassment during the 1979 economic development agreement
revolution caused the withdrawal of most
of the American and other foreign
- Whether the subject matter is particularly broad, i.e., they are not concerned only with an isolated
personnel working on it. purchase or performance, but tend to bring to developing countries investments and technical assistance.
3. This, coupled with general revolutionary ‣ Consequence of an “internationalised” contract
disruption and government intervention,
caused the project to fall behind schedule - An “internationalised” contract is subjected to the standards of international law and taken out of the
and Shah Goli to be in financial difficulties. ambit of domestic law:Texaco v Libya (1978)
4. On January 30, 1980, the Iranian
✓ Conditions for “stabilisation clauses” to work: Aminoil case
Government placed Shah Goli under the
control of a temporary manager. ‣ it is for a serious undertaking; and
5. The claimant contended that their ‣ it is expressly stipulated for; and
property interests in the housing project
have been unlawfully taken by the ‣ it covers a limited period.
Government of Iran which has deprived • In some circumstances, an appropriate compensation may even bypass a “stabilisation clause”, see Aminoil case.
them of the effective use, control and
benefits of their property by means of
various actions authorising, approving and
Starrett Housing Corp v Iran (interlocutory Award)
ratifying acts and conditions that prevented US v Iran (1983)
Starrett from completing the Project.
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In this interlocutory award, the Tribunal
determined that there had been a “taking” of
the claimant’s property as of the end of
January 1980 and appointed experts to
evaluate the loss.

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Expropriation even without nationalisation law.

The Court noted that the Government of Iran did not issue any law or decree according to which the Zomorod Project or Shah
Goli expressly was nationalised or expropriated. However, it is recognised in international law that measures taken by a State can
interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have
been expropriated, even though the State does not purport to have expropriated them and the legal title to the property
formally remains with the original owner.
Assumption of control over property by a government does NOT automatically and immediately justify a conclusion that the
property has been taken by the government, thus requiring compensation under international law.
• In this case it cannot be disregarded that Starrett has been requested to resume the Project. It has been proved that at least
by the end of January 1980 the Government of Iran had interfered with the claimants' property rights in the project to an
extent that rendered these rights so useless that they must be deemed to have been taken.
Claimants rely on precedents in international law in which cases measures of expropriation or taking, primarily aimed at physical
property, have been deemed to comprise also rights of a contractual nature closely related to the physical property.
• In this case it appears from the very nature of the measures taken by the Government of Iran in January 1980 that these
measures were aimed at the taking of Shah Goli.
• The property interest taken by the Government of Iran must be deemed to comprise the physical property as well as the
right to manage the Project and to complete the construction in accordance with the Basic Project Agreement and related
agreements, and to deliver the apartments and collect the proceeds of the sales as provided in the Apartment Purchase
Agreements.
1. Amoco is a Swiss company and a Amoco International Finance Corp. v Iran

wholly owned subsidiary of Standard US v Iran (1987)
Oil, and American company.
The first doctrine of foreign investment law that was pronounced in Amoco is that the ground for expropriation which was
2. Amoco entered into a joint venture with
NPC, an Iranian company controlled by the formerly limited to “public utility” (as expressed in the Chorzow case) has been expanded to the more general term “public
Iranian government, to form Khemco, an purpose”.
Iranian company jointly owned and
managed by Amoco and NPC. ➡ It is therefore not needed for the expropriating home state to prove that it wanted to exercise ownership over the property
3. The venture sought to process and sell taken for the use of the public. It is enough that the taking be done in pursuance of some public purpose.
Iranian natural gas, each contracting party
having 50% shares in the profits to be
realised. Secondly, the case reiterated the doctrine in LIAMCO that a taking satisfies international standards of lawfulness when it
4. In 1980, the Khemco Agreement, which provides for a mechanism for the payment of compensation.
was by its terms valid for 35 years, was
declared null and void by the Iranian • Under the Single Article Act, a special commission will be constituted to determine the amount of compensation due to the
government following the 1979 Iranian foreign investor, any disagreement over the quantum of which may be submitted for arbitration.
revolution and the implementation of • Amoco did not avail of this remedy, and so it cannot be said that the expropriation was unlawful per se because it did not
Iranian legislation (the Single Article Act of
1980) that was intended to complete the grant compensation in such manner and within such time as to satisfy the investor.
nationalisation of the Iranian oil industry. ➡ What would make an act of taking unlawful under international law would be the absence of any provision for
5. Amoco filed a suit for compensation for compensation.
the taking of its interests in Khemco.
Thirdly, the Amoco case is also instructive with regard to the issue of discriminatory takings.
• In the BP case, the Tribunal actually found that there was a discriminatory expropriation because it was undertaken only
against BP and not against other similar ventures of other nationalities.
• The Tribunal in the Amoco case did not rule that an expropriation is per se unlawful because it is directed only against a
particular entity within a larger industry. The Tribunal in this case recognised that the act of expropriation which is the
prerogative of the home state may be undertaken in such manner as to be determined by the home state in pursuance of its
policies. The non- expropriation of an entire branch of economic activity is not in itself discrimination, absent any evidence of
patent bad faith or discriminatory designs. Said the Tribunal: “Reasons specific to the non-expropriated enterprise, or to the
expropriated one, or to both, may justify such a difference of treatment. Furthermore, as observed by the arbitral tribunal in
AMINOIL, a coherent policy of nationalisation can reasonably be operated gradually in successive stages”.
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Lastly, the important doctrine laid down in this case is that stabilisation clauses must be clear in demanding from the home state
obligations which the investor state can enforce against it. Absent such unequivocal stipulation in the contract, the home state
cannot be deemed to have been a party to the contract and cannot therefore be held liable under its terms.
• In this case, no clear obligation was imposed by the concession contract on the Iran government.
• There was no showing that the contract contained a “stabilisation clause” that would have obligated the Iranian
government to insulate the contract from any change in domestic law that would affect the contract’s operation.
• As such, the Iranian government cannot be said to have expropriated Amoco’s property in breach of its obligations
because no obligation exists on its part.
In conclusion, the Tribunal ordered Iran’s compensation of Amoco as a necessary legal consequence of the taking, and such
expropriation was classified as a lawful one under international law, thereby negating the propriety of any award of damages.
1. In 1973 and 1974, Libya decided to • The difference between value of a lawful taking and unlawful one
nationalise the properties and assets • If the taking is lawful the value of the undertaking at the time of the dispossession is the measure and the limit of the
of two American companies which were
granted concession contracts to exploit and compensation, while if it is unlawful, this value is, or may be, only a part of the reparation to be paid.
extract oil.
2. The contention concerned two clauses in Texaco v Libya (1978)
the concession contract: (1) the
“stabilisation clause” which provides that An “internationalised” contract with a stabilisation clause precludes the exercise of the expropriatory prerogatives of the home
“the contractual rights expressly created by state.
this concession shall not be altered except
by mutual consent of the parties” and (2)
the “governing law” clause which provides According to sole arbitrator Dupuy, the stabilisation, governing law, and arbitration clauses of the concession contract are
that “the concession shall be governed by sufficient evidence that the contract has been “internationalised”, meaning subjected to the standards of international law and
and interpreted in accordance with the
principles of the law of Libya common to taken out of the ambit of domestic law.
the principles of international law and in • The validity of the actuations of both parties, therefore, has to be measured against international standards, and not based on
the absence of such common principles its compatibility with Libyan law.
then by and in accordance with the general
principles of law, including such of those • Internationalisation of contracts results in the protection of investors against the risks of contractual modification or abrogation
principles as may have been applied by resulting from changes in municipal laws or other governmental measures.
international tribunals”.
3. Further, under the concession contract, any • Specifically, Dupuy states that “the recognition by international law of the right to nationalise is not sufficient ground to
disputes arising from the interpretation of empower the state to disregard its commitments, because the same law also recognises the power of a state to commit itself
the terms of the agreement (including internationally, especially by accepting the inclusion of stabilisation clauses in a contract entered into with a foreign private
alleged breaches of the stabilisation clause)
shall be submitted to international party”.
arbitration. ➡ Thus, in respect of the international law of contracts, a nationalisation cannot prevail over an internationalised contract,
1. Aminoil is an American company containing stabilisation clauses...”
which was granted an oil concession
by Kuwait for a duration of 60 years. ➡ Therefore, if a state bound itself to a contract which is international in character and burdened with stabilisation clauses,
2. However, Kuwait, by Decree, terminated such state is deemed to have waived its prerogative to expropriate contrary to the terms of such contract.
the agreement before its expiry and
transferred the concession assets to itself. ➡ Since, in this case, the expropriation was deemed to have been contrary to the stabilisation clause of an internationalised
3. Aminoil question the legality of the contract, the expropriatory act is set aside and Dupuy awarded a remedy of restitutio in integrum --> meaning Libya was
termination under the “stabilisation clauses compelled to perform its obligations under the concession contract, i.e., to allow Texaco to extract oil.
of the contract,” particularly Art 17 and Art
11(B).
4. The provisions prohibit a nationalisation of Aminoil Case
the oil venture. Kuwait v American Independent Oil Co. (1982)
• Art 17 states that “no alteration shall
be made in the terms of this In contrast with Dupuy’s arbitral decision in the Texaco case, the arbitral court in Aminoil expressly reiterates that there is no rule
Agreement ...except in the event of in international law absolutely precluding a home state from expropriating.
the Shaikh and the Company jointly
agreeing that it is desirable in the • The only limitations (and not absolute exceptions) to this rule are three-fold:
interest of both parties to make ‣ States may pledge not to nationalise but only if:
certain alterations, deletions or - [a] it is for a serious undertaking; (other investments of a smaller scale may be expropriated more expeditiously)
additions.”
• Art 11(B) states that “save as - [b] it is expressly stipulated for; (in any case any such limitations must be embodied in the contract)
aforesaid this Agreement shall not be - [c] it covers a limited period. (the prohibition against taking cannot be perpetual)
terminated before the expiration of
the period specified” except by
• The expropriatory power of the state is the general rule, and therefore any limitations to its exercise cannot be implied.
surrender as provided in Article 12 or
if the Company shall be in default Appropriate compensation
under the arbitration provisions of
Article 18.
In considering the legal consequences of an expropriatory act, consideration must be given to whether the investor has been
5. Kuwait, in defence of its actions, invokes adequately protected by express provisions of the contract relating to compensation.
the principle of sovereignty over natural
82
resources which, according to it, is an
imperative rule of jus cogens.This principle
prohibits States from giving guarantees
against the exercise of the public authority
over natural resources.

lOMoARcPSD|3142874
• The compensability of an expropriatory act strongly militates against the presumption that the home state can take property
without necessary legal consequences in the exercise of its sovereignty.
In the present case, the Tribunal also interpreted Arts 17 and 11(B) as not absolutely forbidding nationalisation because it
impliedly requires that nationalisation shall not have a confiscatory character.
Lastly, the Tribunal gave due credit to the fact that the act of Kuwait was in pursuance of a legitimate state policy.
• It considered that the undertaking (the extraction of oil) was at first, directed to narrow patrimonial ends, that is, as a financial
venture entered into by the Kuwaiti government for its governmental purposes.
• Later, it became an essential instrument in the economic and social progress of the State, as evidenced by the progressive
development of Kuwaiti law with a view to taking an active role in the development of its own resources within its territory.
As such, the expropriation in this case was not found to be unlawful, and the Tribunal merely awarded compensation to Aminoil.
Diplomatic Protection
Diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of
the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal
person that is a national of the former State with a view to the implementation of such responsibility: Draft Articles on
Diplomatic Protection (art.1)
General Rule
A State has the right to exercise diplomatic protection in accordance with the present draft articles: DADP art. 2
• Requirement:
✴ The State entitled to exercise diplomatic protection is the State of nationality: DADP art. 3(1)
‣ Rationale: the rule is necessary limited to intervention on behalf of its own nationals because, in the absence of
a special agreement, it is the bond of nationality between the State and the individual which alone confers upon
the State the right of diplomatic protection: Panevezys-Saldutiskis case (1939)
✴ The nationality must be continuous from the date of injury to the date of the official presentation of the claim: for
natural person, DADP art. 5(1); for corporation, DADP art. 10(1)
‣ Exceptions for “continuity” requirement, i.e, the claimant State is entitled to exercise diplomatic protection when:
- The person who is the claimant State’s national at the date of the official presentation of the claim, but
was not a national at the date of injury, PROVIDED the reason for the person to lost his previous
nationality and to acquire his later nationality is unrelated to the bringing of the claim: DADP art. 5(2)
- The corporation possessed the nationality of the claimant State at the date of injury, however, as the result
of the injury, has ceased to exist according to the law of the State of corporation (i.e., claimant State):
DADP art. 10(3)
‣ When diplomatic protection is not available?
- If the injury was caused when the person was a national of the respondent State: DADP art. 5(3)
- The person acquires the nationality of the respondent State after the date of the official presentation of
the claim: DADP art. 5(4); Loewen Group Inc v USA
- For corporation, i.e., the corporation acquires the nationality of the respondent State after the date of
the official presentation of the claim: DADP art. 10(2)
❖ Exhaustion of local remedies
‣ See below.
• A State is allowed to exercise diplomatic protection in respect of its national against a State of which that person is not a
national even where that person is a national of one or more other States, i.e., dual or multiple national: DADP art. 6
• However, a State may not exercise diplomatic protection in respect of a person against a State of which that person
is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date
of the official presentation of the claim: DADP art. 7
• Concept of dominant nationality = Principle of effective nationality, for the criteria, see Nottebohm case
- habitual residence,
- the amount of time spent in each country of nationality,
- date of naturalisation;
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- place, curricula and language of education;

- employment and financial interests;
- place of family life;
- family ties in each country;
- participation in social and public life;
- use of language;
- taxation, bank account, social security insurance;
- visits to the other State of nationality;
- possession and use of passport of the other State;
- military service
★ None of these facts is decisive and the weight attributed to each factor will vary according to the
circumstance of each case.
A State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that
the State is asserting: Barcelona Traction case
Exceptions
Diplomatic protection may be exercised by a State in respect of a person that is not its national: DADP art. 3(2)
• when the person is a stateless person who, at the time of injury and at the date of the official presentation of the claim,
is lawfully and habitually resident in that State: DADP art. 8(1)
• when the person is recognised as a refugee by that State, and at the date of injury and at the date of the official
presentation of the claim, is lawfully and habitually resident in that State: DADP art. 8(2)
• Do not apply when the wrongful act is caused by the refugee’s national State: DADP art. 8(3)
Other possible exceptions:
• A right to protection of non-nationals may arise from treaty or an ad hoc arrangement establishing an agency.
• Alien seamen on ships flying the flag of the protecting State and members of the armed forces of a State: DADP art.18
• If the injured party was in the service of the claimant State.
Nationality
For the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that
person has acquired, in accordance with the law of that State, by birth, descent, naturalisation, succession of States, or in any
other manner, not inconsistent with international law: DADP art. 4
• Marriage to a national is not sufficient for the grant of nationality
• An effective or genuine link between the State and its national is not necessary to be proved, the situation in Nottebohm
case is really extremely tenuous.
• The acquisition of nationality must not be inconsistent with international law.
1. Nottebohm was granted citizenship For the purpose of the diplomatic protection of a corporation, the State of nationality means the State under whose law the
by Liechtenstein although most of his corporation was incorporated: DADP art. 9
time he lived in Guatemala and the
requirement of residence for at least three • In addition to incorporation and a registered office, there is a need for some “permanent and close connection” between
years in the territory of Liechtenstein was the State exercising diplomatic protection and the corporation: Barcelona Traction case.
not satisfied.
2. Guatemala said that Nottebohm was ✓ Where there is no other significant link or connection between the State of incorporation and the corporation itself,
German so it confiscated his property as and where certain significant connections exist with another State, in which case that other State is to be regarded
prize of war (as an Ally). as the State of nationality for the purpose of diplomatic protection: DADP art. 9
3. The Government of Liechtenstein filed an
application before the Court in which it • “Significant link or connection” here means
claimed restitution and compensation on - the control of the corporation
the ground that the Government of - the substantial business activities of the corporation
Guatemala had “acted towards the person
and property of Mr. Nottebohm, a citizen - the seat of management
of Liechtenstein, in a manner contrary to - the financial control of the corporation.
international law.”
4. The Government of Guatemala contended
• The granting of the right to exercise diplomatic protection to several States with which a corporation enjoys a link or
that this claim was inadmissible on a connection is not allowed: DADP art. 9; Barcelona Traction case
number of grounds, and on of its objections
to the admissibility of the claim related to
the nationality of the person by alleging “it
Nottebohm Case
was the bond of nationality between the Liechtenstein v Guatemala (1955)
State and the individual which alone
confers upon the State the right of 84
diplomatic protection”.
Held, Guatemala was under no obligation to
recognise a nationality granted in such
circumstances.

lOMoARcPSD|3142874
An effective or genuine link between the State and its national

In a case of a dual nationality, to decide the real nationality of a person, the Court gave their preference to the real and effective
nationality, based on:
• Stronger factual ties between the person concerned and one of the States whose nationality is involved. May be inferred from
the following factors:
• the habitual residence of the individual; (important)
• the centre of his interests,
• his family ties,
• his participation in public life,
• attachment shown by him for a given country and inculcated in his children.
• the other States’ opinion.
Protection of Companies and Shareholders
General Rule: Barcelona Traction case

• State of the company can seek redress, i.e, national State of those shareholders lacks locus standi to bring a claim.
Exceptional circumstances: Barcelona Traction case
• the case of the company having ceased to exist, and: Barcelona Traction case; DADP art. 11(a)
• the case of the protecting State of the company lacking capacity to take action.
• The State of incorporation was itself responsible for inflicting injury on the company and the foreign shareholders’
sole means of protection on the international level was through their State(s) of nationality: Barcelona Traction case;
DADP art. 11(b)
✓ Restrictive feature of the Draft Article: DADP art. 11(b)
- The Draft Article is restricted to the situation in which the corporation had, at the date of the injury, the
nationality of the State alleged to be responsible for causing the injury, and
- moreover, the incorporation was required by the State inflicting the injury as a precondition for doing
business there
• The shareholders qualify for diplomatic protection when their own rights are affected, as distinct from those of the
corporation itself: DADP art. 12; Diallo
‣ Non-exhaustive list:
- the right to a declared dividend,
- the right to attend and vote at general meetings,
- the right to share in the residual assets of the company on liquidation, etc.
‣ For shareholders, there is no general exception for the shareholders in regards of the general rule: Diallo case
1. The BTLPC, was incorporated in
Toronto (Canada) for the purpose of Barcelona Traction, Light and Power Co. case
creating and developing an electric power
production and distribution system in Belgium v Spain (1970)
Catalonia (Spain). Municipal law applied to international law.
2. It formed a number of subsidiary
• In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognise institutions
companies, of which some had their
registered offices in Canada and the others of municipal law.
in Spain. • In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those
3. Some years after the first world war
Barcelona Traction share capital came to
of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that
be very largely held by Belgian nationals. were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not
(88%). imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the
4. The servicing of the Barcelona Traction
bonds was suspended on account of the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did
Spanish civil war. not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be
5. After that war the Spanish exchange different, the act complained of must be aimed at the direct rights of the shareholder as such.
control authorities refused to authorise the
transfer of the foreign currency necessary • which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an
for the resumption of the servicing of the infringement of the direct rights of the shareholders.
sterling bonds. Eventually, the company was
declared bankrupt.
6. Belgium filed an application with the ICJ General Rule:
against the Spanish government seeking State of the company can seek redress.
reparation of damages claimed to have
85
been caused to the Belgian national
shareholders of the company.
Held, no jus standi was conferred on the
Belgian Government and accordingly, the
Belgian Government’s claim was rejected.

lOMoARcPSD|3142874
International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's
interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an
unlawful act committed against a company representing foreign capital, the general rule of international law authorised the
national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international
law expressly conferred such a right on the shareholder's national State.
Exceptional circumstances.
The Court considered whether there might not be, in the present case, special circumstances for which the general rule might
not take effect.Two situations needed to be studied:
(a) the case of the company having ceased to exist, and
(b) the case of the protecting State of the company lacking capacity to take action.
• The State of incorporation was itself responsible for inflicting injury on the company and the foreign shareholders’ sole
means of protection on the international level was through their State(s) of nationality.
• As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had lost all its assets in Spain and
been placed in receivership in Canada, it could not be contended that the corporate entity of the company had ceased to exist
or that it had lost its capacity to take corporate action.
• So far as the second possibility was concerned, it was not disputed that the company had been incorporated in Canada and
had its registered office in that country, and its Canadian nationality had received general recognition. The Canadian
Government had exercised the protection of Barcelona Traction for a number of years. If at a certain point the Canadian
Government ceased to act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish
Government had not questioned. Whatever the reasons for the Canadian Government's change of attitude, that fact could not
constitute a justification for the exercise of diplomatic protection by another government.
In regards of Canada’s cessation of the claim

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is asserting.
• Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they
have no remedy in international law.
• All they can do is to resort to municipal law.
It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part
of a State's national economic resources, were prejudicially affected in violation of the right of the State itself to have its
nationals enjoy a certain treatment.
• But, in the present state of affairs, i.e., shareholders in a company owned by another State, such a right could only result from
a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain.
1. Mr Diallo was a national of Guinea

who had settled in the DRC in 1964 Obligations owed to the international community as a whole
and had remained resident there ever In particular, an essential distinction should be drawn between the obligations of a State towards the international community as
since, engaging in commercial activities a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the
through his two companies, both of which
were incorporated under DRC law and had concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their
DRC nationality. protection; they are obligations ergs omnes.
2. He was arrested in 1995 and detained
prior to his deportation two months or so
later in 1996 (to Guinea) on “public Diallo Case (Preliminary Objections)
order” grounds. Guinea v Democratic Republic of the Congo (2007)
3. Guinea claimed that the arrest, detention
and deportation of Mr Diallo were the In determining whether a company possesses independent and distinct legal personality, international law looks to the rules of
“culmination of a DRC policy to prevent the relevant domestic law.
him from recovering debts owing to his
companies” and were contrary to the
principle that aliens should be treated in There is no general exception to the general rule governing the protection of companies by which the national State of a
accordance with a “minimum standard of shareholder may offer that shareholder protection where the national State of an existing company is the State against which
civilisation”.
Held, the application of Guinea was
protection is sought.
admissible insofar as it concerned the
protection of Mr Diallo’s rights as an
individual and as an associe of the two 86
companies; however, inadmissible insofar as it
concerned Mr Diallo’s protection in respect of
alleged violations of rights of the two
companies.

lOMoARcPSD|3142874
Exhaustion of Local Remedies
Diplomatic protection cannot be relied on before the injured person has exhausted all local remedies: DADP art. 14(1);
Ambatielos Arbitration.
• “Local remedies” means legal remedies which are open to the injured person before the judicial or administrative courts
or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury: DADP art. 14(2)
• DADP art. 14(2) provides that exhaustion of local remedies rule applies only to cases in which the claimant State has
been injured “indirectly”, that is, through its national.
• Using “but for” test to check whether the injury is direct or indirect.
• If the question is answered negatively, the claim is an indirect one and local remedies must be exhausted.
Exceptions to DADP art. 14, i.e., local remedies do not need to be exhausted where: DADP art. 15
• Local courts offer no prospect of redress
‣ failures in the administration of justice; (a)
- It is not sufficient for the injured person to show that the possibility of success is low or that further appeals are
difficult or costly.
- The test is not whether a successful outcome is likely or possible but whether the municipal system of the
respondent State is reasonably capable of providing effective relief.
✓ This must be determined in the context of the local law and prevailing circumstances.
‣ undue delay in the remedial process on the part of responsible State; (b)
• It unfair or unreasonable that an injured alien should be required to exhaust local remedies as a precondition for the
bringing of a claim
‣ no relevant connection between the injured person and the responsible State at the date of injury; (c)
- Link such as voluntary physical presence, residence, ownership of property or a contractual relationship with the
respondent State.
✓ It is only where the alien has subjected himself voluntarily to the jurisdiction of the respondent State that
he would be expected to exhaust local remedies.22
‣ the injured person is manifestly precluded from pursuing local remedies; (d)
- Burden of proof on the injured person
• Where the respondent State has waived compliance with the local remedies rule: (e)

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12. The Use of Force
History & Development
Prior to the First World War, international law condoned the resort to war by States.
After the First World War, the League of Nations Covenant imposed some limitations upon “resort to war”.
It was not until the General Treaty of 1928, however, that a comprehensive prohibition of war as an instrument of national
policy was achieved.
• However, before 1945, the use of armed force was permitted in international law as a reprisal for an illegal act.
A countermeasures involving the use of armed force is now prohibited by art.2(4), UN Charter.
The Prohibition of the Use of Force
Article 2(4) UN 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.
It is established that art.2(4) is a rule of customary international law applying to all States: Nicaragua (Merits) case
What is forbidden?
✴ Force
‣ Article 2(4) prohibits the use of armed force, whether amounting to war or not.
- It does not prohibit political pressure or economic pressure.
• In the Nicaragua (Merits) case, the funding of the contras, although not an unlawful use of force, was
illegal intervention.
‣ Giving of assistance to rebels may be an indirect use of force contrary to customary international law: Nicaragua
(Merits) case
- The establishment, organisation or control of a rebel force or giving of material support (e.g., logistic support,
bases) would qualify.
‣ Humanitarian assistance, whether financial or otherwise (blankets, food, etc) is perfectly lawful, provided it is given
equally to rebels and others in the community in need: Nicaragua (Merits) case
✴ Threat of force: Legality of Nuclear Weapons case
✴ Against the territorial integrity or political independence of any State or in any manner
‣ Type of intervention including threatening another State’s either the territory integrity or the political independence:
Corfu Channel case, i.e.,
- Deprives one State of the whole or a part of its territory
- Brings a State under another’s political control: Afghanistan case
Two limitations
• Self-defence
• Humanitarian intervention
• Security Council’s action
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1. Nicaragua filed an Application Nicaragua Case (Merits)

instituting proceedings against the US Nicaragua v United States (1986)
in respect of a dispute concerning
responsibility for military and paramilitary The case is an authority on the following points:
activities in and against Nicaragua (mining 1. Definition of armed attack
of ports, air space infringement, support to 2. Control test --> when action of armed group is an act of state
the contras, economic measures). 3. When self-defence can be invoked
2. Nicaragua contends that the US, in 4. Duty of state when found in breach
recruiting, training, arming, equipping,
a. duty to cease in the breach
financing, supplying and otherwise
encouraging, supporting, aiding, and b. duty to make reparations
directing military and paramilitary actions i. restore status quo ante
in and against Nicaragua, has violated and ii. if impossible, pay compensation to extinguish consequences of illegal acts
is violating its express charter and treaty 5. Customary norm has separate applicability even if part of a treaty.
obligations to Nicaragua, and in particular 6. Existence of the rule on opinio juris of States must be confirmed by practice.
the UN Charter, the Charter of the
Organisation of American States, the
Convention on Rights and Duties of States, Definition of “armed attack”
and the Convention concerning the Duties An armed attack includes not merely action by regular armed forces across an international border, but also “the sending by or
and Rights of States in the Event of Civil
Strife. on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another
3. The US declaration of acceptance of the State of such gravity as to amount to” an actual armed attack conducted by regular forces, “or its substantial involvement
compulsory jurisdiction of the Court under
therein”.
Article 36, paragraph 2, of the Statute
contained a reservation excluding from • It could take place directly, through the use of one’s own forces OR indirectly through armed bands or irregulars.
operation of the declaration: "disputes ★ The key is SCALE and EFFCTS test.
arising under a multilateral treaty, unless
(1) all parties to the treaty affected by the
decision are also parties to the case before The armed attack, necessity, and proportionality requirements.
the Court, or (2) the United States of The general rule prohibiting force allows for certain exceptions.
America specially agrees to jurisdiction".
4. Invoking its multilateral treaty reservation, ✴ The inherent right which any state possesses in the event of an armed attack, covers both collective and individual self
US argues that adjudication of claims defence.
based on those treaties (i.e. UN Charter,
OAS Charter) is barred. • It is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other
5. Thus the effect of the reservation in less grave forms, and
question is not merely to prevent the ICJ ✴ The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity
from deciding upon Nicaragua's claims by
applying the multilateral treaties in and the proportionality of the measures taken in self defence.
question; it further prevents it from - In the case of individual self-defence, the exercise of this right is subject to the state concerned having been a victim of an
applying in its decision any rule of armed attack.
customary international law the content of
which is also the subject of a provision in - Reliance on collective self-defence of course does not remove the need for this.
those multilateral treaties (that all ★ There is NO rule in customary international law permitting another state to exercise the right of collective self-
principles of customary and general
international law are barred, as these are
defence on the basis of its OWN ASSESSMENT of the situation.
subsumed and supervened by the ➡ It is the State which is the victim of an armed attack which must form and declare the view that it has been so
provisions of the UN Charter.) attacked.
The Court held that such acts of the US
constitute breaches of obligations under
customary international law not to intervene Request for exercise of collective self-defence also needed.
in the affairs of another state, not to use force Thus, in customary international law, there is no rule permitting the exercise of collective self-defence in the absence of a request
against another state, not to violate the
sovereignty of another state. by the State which regards itself as the victim of an armed attack.
The requirement of a request is additional to the requirement that such a State should have declared itself to have been
attacked.
Principle of Non-intervention.
The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference.
➡ A prohibited interference must accordingly be one bearing on matters in which each State is permitted, by the principle of
State sovereignty, to decide freely.
• The element of coercion, which defines, and indeed forms the very essence of prohibited intervention, is particularly obvious in
the case of an intervention which uses force, either in the direct from of military action, or in the indirect form of support to
subversive or terrorist armed activities within another State.
✓ These are therefore wrongful in the light of both the principle of non-use of force, and that of intervention.
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Collective counter-measure in response to conduct not amounting to an armed attack.

While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity
cannot produce any entitlement to take collective counter-measures involving the use of force.
• The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only
have justified proportionate counter-measures on the part of the victim States (El Salvador, Honduras, Costa Rica). They could
not justify counter-measures taken by a third State (the US) and particularly could not justify intervention involving the use of
force.
Violation of the sovereignty of another State

Coastal State’s Sovereignty extends to internal waters and airspace. Coastal State’s Laws apply in Internal Waters.
✴ The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to
the sovereignty of the coastal State.
✴ The position is similar as regards mines placed in the territorial sea.
• US military laid mines in Nicaraguan internal waters and in its territorial sea and along Nicaraguan ports causing
material damage to Nicaragua and innocent vessels. The US Government did not issue any public and official warning to
international shipping of the existence and location of the mines.
Jurisdiction issue
In this case, Nicaragua asserted that the Court had jurisdiction over its application because both Nicaragua and the US had
accepted the compulsory jurisdiction of the Court under the Optional Clause.
The US contended that the Court lacked jurisdiction on the following grounds:
1. that Nicaragua’s acceptance of the compulsory jurisdiction of the PCIJ was not in force in 1945, for failure to ratify the
Statute of the PCIJ, such that Art. 36 (5) of the ICJ Statute did not apply to it;
2. three days before the application had been filed, the US had filed a notification stating that the compulsory jurisdiction shall
not apply to disputes with any Central American State, said notification to take effect immediately; and that
3. US had made a reservation in its Optional Clause whereby disputes arising under a multilateral treaty, which could affect
3rd states which are parties to the treaty but are not participating in the proceedings before the Court, were excluded from
the jurisdiction of the Court.
ICJ held that it had jurisdiction.
• Nicaragua’s 1929 Declaration was valid at the moment when Nicaragua became a party to the Statute of the new Court,
i.e., ICJ.
• Six month’ notice clause
• The US declaration relating to the 1984 notification could only be terminated on REASONABLE NOTICE.
• Six months after the notification required to make the modification effective.
• As to the declaration, the US entered into an obligation which is binding upon it vis-a-vis other States parties to the
optional-clause system.
• Although the US retained the right to modify the contents of the 1946 Declaration or to terminate it, a power
which is inherent in any unilateral act of a State,
• It has, nevertheless assumed an inescapable obligation towards other States that any such change should
take effect only after six months have elapsed as from the date of notice.
• Reservation as to “multilateral treaties parties”.
• Nicaragua invokes a number of principles of customary and general international law that, according to the application,
have been violated by the US.
➡ The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law,
simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua.
‣ Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial
integrity of States, and freedom of navigation, continue to be binding as part of customary international law,
despite the operation of provisions of conventional law in which they have been incorporated.
Customary law operates independently of treaty law.

It rather demonstrates that in the field in question, customary international law continues to exist alongside treaty law.
➡ The areas governed by he two sources of law thus do not overlap exactly, and the rules do not have the same content.
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✴ But even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for
the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its
applicability as distinct from that of the treaty norm.
• There are a number of reasons for considering that, even if two norms belonging to two sources of international law
appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law
and on that of customary international law, these norms retain a separate existence.
✓ This is so from the standpoint of their applicability.
‣ In a legal dispute affecting two States, one of them may argue that the applicability of a treaty rule to its own
conduct depends on the other State's conduct in respect of the application of other rules, on other subjects, also
included in the same treaty.
• For example, if a State exercises its right to terminate or suspend the operation of a treaty on the ground
of the violation by the other party of a "provision essential to the accomplishment of the object or purpose
of the treaty", it is exempted, vis-a-vis the other State, from a rule of treaty-law because of the breach by
that other State of a different rule of treaty-law.
• But if the two rules in question also exist as rules of customary international law, the failure of the one
State to apply the one rule does not justify the other State in declining to apply the other rule.
‣ Rules which are identical in treaty law and in customary international law are also distinguishable by reference
to the methods of interpretation and application.
• A State may accept a rule contained in a treaty not simply because it favours the application of the rule
itself, but also because the treaty establishes what that State regards as desirable institutions or
mechanisms to ensure implementation of the rule.
➡ Thus, if that rule parallels a rule of customary international law, two rules of the same content are
subject to separate treatment as regards the organs competent to verify their implementation,
depending on whether they are customary rules or treaty rules.
Court must make a determination of state practice & opinio juris.

Bound as it is by Art. 38 of its Statute to apply international custom "as evidence of a general practice accepted as law", the
Court may not disregard the essential role played by general practice.
✴ In the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is
not enough.
➡ The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice.
Conduct of a state must be consistent with the rule.

The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely
rigorous conformity with the rule.
✴ In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in
general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new rule.
• Rationale: If a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing
to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable
on that basis, the significance of that attitude is to confirm rather than to weaken the rule.
Opinio juris can be deduced from attitude of states toward certain GA resolutions.
This opinio juris may, though with all due caution, be deduced from the attitude of the Parties and the attitude of States towards
certain General Assembly resolutions, i.e. the "Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the UN".
✴ The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of
the treaty commitment undertaken in the Charter.
★ On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the
resolution by themselves.
• The principle of non-use of force, for example, may thus be regarded as a principle of customary international law,
not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be
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provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses
an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately from the provisions,
especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.
Recognition that a rule is fundamental or a jus cogens establishes Customary International Law
A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force
expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State
representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such
law.
• Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come
to be recognised as jus cogens.
• The US, in its Counter-Memorial on the questions of jurisdiction and admissibility, found it material to quote the views of
scholars that this principle is a "universal norm", a "universal international law", a "universally recognised principle of
international law", and a "principle of jus cogens".
Intervention in Civil Wars
An armed attack upon another State annexing its territory is the ultimate form of intervention. Certain kinds of assistance to
rebels in a civil war is within the principle of non-intervention and the prohibition of the use of force: Nicaragua (Merits) case
The intervention below the level of an “armed attack” could not justify countermeasures taken by a third State against a State
assisting rebels: Nicaragua (Merits) case
• Thus, El Salvador, but not the US, could have taken them against Nicaragua..
Intervention by a third State is “allowable at the request of the government of a State”, but only, by inference, against the
rebels themselves and within the limits imposed by territorial sovereignty: Nicaragua (Merits) case
• EL Salvador, for example, could have invited the US to send troops or provide arms to help it fight against the rebels on
EL Salvadoran territory, but the US could not have effected countermeasures against Nicaragua
The right of Self-defence
Article 51 UN Charter
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.
The law and practice on self-defence mostly covers the following aspects:
• Large scale attacks by one State upon another of the classical sort: Falkland Islands case
• Lower scale cross border raids by guerrilla forces and others: Nicaragua (Merits) case
• Government or terrorist activities injuring the nationals of another State abroad: US air raids on Libya and Entebbe
Incident cases
• Al-Qaida terrorist activity of the 9/11 kind
‣ Post 9/11 2001, there has been radical alteration from many States’ prior conception of the right to self-defence
(though unclear enough):
- It widens the concept of armed attack. Now it is arguable that a terrorist attack on a State’s territory by a non-
State actor may be an armed attack which justifies a response against the State which harboured those
responsible. Some uncertainty remains as to the degree of State involvement required.
- Preemptive self-defence is accepted at some degree
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• Sufficient threat to the national security. The greater the threat, the greater is the risk of inaction and the
more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as
to the time and place of the enemy’s attack.
- The right of self-defence against terrorism may exist only in cases where the right has been asserted by the
Security Council.
Burden of proof: Oil Platforms case (Merits)
✴ A State has “inherent” right of self-defence. However, the State who argued for self-defence bears the burden to prove:
• There was an armed attack.
• The force used was necessary and proportionate.
• Specific requirement with respect to different types of self-defence, i.e., individual or collective.
Inherent right
• A State’s “inherent” right of self-defence is an exception to the prohibition of the use of force in art.2(4) UN Charter.
“Armed attack” required.
• The right of self-defence, whether individual or collective, is only available in response to an “armed attack”: Nicaragua
(Merits) case
‣ An armed attack includes not merely action by regular armed forces across an international border, but also “the
sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to” an actual armed attack conducted by regular forces, “or
its substantial involvement therein”.
- Its “scale and effects” must be sufficient.
• Self-defence cannot be invoked to settle territorial disputes, speaking specifically, self-defence does not give title to
territory: Eritrea-Ethiopia case
‣ However, the use of force by a State to recovery territory to which it claims title that has been taken from it by force
by another State (also claiming title) immediately after the territory has been taken away may be justified on a basis
of self-defence: The Falkland Islands War
Necessity and proportionality
• The armed force used in self-defence must be both necessary and proportionate: Nicaragua (Merits) case
‣ Reflects in:The Caroline case
- Instant and overwhelming danger
- Leaving no choice of means
- Leaving no moment for deliberation.
- The force engaged was not unreasonable or excessive.
- The scale of the whole action.
Types of self-defence
✴ Individual self-defence
• The exercise of this right is subject to the State concerned having been the victim of an armed attack: Nicaragua
(Merits) case
✴ Collective self-defence
• Request for exercise of collective self-defence is required.
‣ There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which
regards itself as the victim of an armed attack: Nicaragua (Merits) case
• It is not necessary for any threat to the assisting State’s security.
Sovereignty issue
• In Gulf of Tonkin Incident, it was held justified to exercise the right of self-defence by the United States in terms of
freedom of the high seas and the right of self-defence.
1. During a period of extensive ethnic The Armed Activities Case

and military conflict in the region, DRC v Uganda (2005)
sometimes known as the Second Congo
First, the Court stated that the principles of non-use of force in international relations and of non-intervention were violated by
War, the Ugandan army invaded portions
of the Democratic Republic of Congo. Uganda, because of its occupation of Ituri (which is an area the size of Germany) and its actively extending military, logistic,
2. The DRC later filed a lawsuit against economic and financial support to irregular forces having operated on the territory of the DRC. This is an important finding of
Uganda for armed aggression, exploitation
of its natural resources, and various other
human rights abuses. 93
Held, Uganda had breached several of its
obligations under international law and that
the DRC had violated the Vienna Convention
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the Court because it is the first time an African country has been held responsible for violating the principles of non-use of force
and of non-intervention because of its support to armed groups.This will be of importance in the peace process in the region.
Second, the Court decided that numerous obligations under international humanitarian law and human rights law had been
breached by Uganda. The Court condemned the conduct of Uganda’s armed forces which committed acts of torture and other
forms of inhuman treatment of the Congolese civilian population, failed to distinguish between civilian and military targets,
trained child soldiers and incited ethnic conflict and also the failure of Uganda, as an occupying Power, to take measures to
respect and ensure respect for human rights and international humanitarian law in Ituri.
Uganda’s claim that it acted in self-defence was not accepted. First of all, the Court considered that there was no proof justifying
the claim. It went on to say that Uganda did not report its action in purported self-defence to the Security Council and that it
had never claimed to have been the victim of an armed attack by the DRC, but rather by armed groups operating in the DRC.
On this issue, Judge Simma expressed his disappointment that the ICJ failed to deal with the issue of self-defence against attacks
non-State actors by armed groups, rather than by States. (The speaker remarked that for cases involving the use of force, the ICJ tended to use
the Nicaragua case as a precedent.This may be an impediment to the flexibility of jurisprudence.)
Thirdly, although the ICJ found that there was no policy of looting in the Ugandan armed forces, Uganda was held responsible for
the illegal exploitation of Congolese natural resources, because of its failure to prevent acts of looting, plundering and exploitation
by its armed forces and by armed groups in the region. As an occupying Power it had the responsibility to prevent these groups
from looting. This finding is important for the peace process, because Uganda will no longer be able to claim that its exploitation
of Congolese natural resources was not illegal.
Finally, as regards Uganda’s counterclaim relating to the maltreatment by the DRC of diplomats and foreign nationals at Ndjili
International Airport on 20 August 1998, the Court upheld the claim with regard to the diplomats but found that Uganda could
invoke a breach of the Vienna Convention on Diplomatic Relations only for the diplomats. For other nationals it would have to
rely on diplomatic protection, but because it had not been proven that those who were maltreated had Ugandan nationality, this
claim was denied.
The Court found that the DRC had violated obligations owed to the Republic of Uganda under the Vienna Convention on
Diplomatic Relations of 1961. First, armed forces of the DRC attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan
diplomats and other individuals on the Embassy premises as well as Ugandan diplomats at Ndjili International Airport. Second,
the DRC failed to provide the Ugandan Embassy and Ugandan diplomats with effective protection and Ugandan property from
being seized from the Embassy.
Reparations have to be made for all damages caused by these violations of international law. Since the ICJ has not made a
specific award of reparations this may prove to be an obstacle in negotiations between Uganda and the DRC.
The right of Humanitarian Intervention
Basic concept
• When a State commits cruelties against and persecution of its nationals in such a way as to deny their fundamental
human rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible.
UK guidelines on humanitarian intervention. Six principles
• Any intervention is an admission of failure of prevention, i.e., the intervention is done in order to end the misery caused by
failure of prevention.
• Armed force should only be used as a last resort. Other alternatives: for example, mediation.
• The immediate responsibility for halting violence rests with the State in which it occurs --> International community
should be ready to help if asked.
• When faced with an overwhelming humanitarian catastrophe, which a government has shown its unwilling or unable to
prevent or is actively promoting, the international community should intervene.
• Any use of force should be proportionate to achieving the humanitarian purpose and carried out in accordance with
international law.
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• Any use of force should be collective.
Legality of Nuclear Weapons
1. The UN General Assembly requested Legality of the threat or use of nuclear weapons case (1996)
the ICJ’s Advisory Opinion on the Prohibition is subject to exceptions.
question: “Is the threat or use of nuclear
This prohibition of the use of force (Art. 2, para 4, UN Charter) is to be considered in the light of other relevant provisions of the
weapons in any circumstance permitted
under international law?” Charter
• (Art. 51, on the inherent right of individual or collective self-defence if an armed attack occurs;
‣ Resort to self-defence under Art. 51 is subject to certain restraints (the conditions of necessity and proportionality,
submission to which is a rule in customary international law).
- The proportionality principle may thus not in itself exclude the use of nuclear weapons in self defence in all
circumstances.
• Art. 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII).
UN Charter does not refer to a specific weapon.

These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The
Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons.
• In Article 2, paragraph 4, of the Charter the use of force against the territorial integrity or political independence of another
State or in any other manner inconsistent with the purposes of the United Nations is prohibited. This prohibition of the use of
force is to be considered in the light of other relevant provisions of the Charter.
• In Article 51, the Charter recognises the inherent right of individual or collective self-defence if an armed attack occurs.
• A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military enforcement measures
in conformity with Chapter VII of the Charter.
✴ These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The
Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons.
Necessity & proportionality

The entitlement to resort to self-defence under Article 51 is subject to the conditions of necessity and proportionality.
• The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances.
• But at the same time, a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet
the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian
law.
➡ And the Court notes that the very nature of all nuclear weapons and the profound risks associated therewith are further
considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with
the requirements of proportionality.
Additional considerations.
It suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are
further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance
with the requirements of proportionality.
“Signaled” intention to use force.

Whether a signaled intention to use force if certain events occur is or is not a “threat” within Art. 2, par. 4 of the Charter
depends upon various factors.
• If the envisaged use of force is in itself unlawful, the stated readiness to use it would be a threat prohibited under Art. 2, par 4.
• If it is to be lawful, the declared readiness to use force must be a use of force that is in conformity with the Charter.
• Possession of nuclear weapons may indeed justify an inference of preparedness to use them.
‣ Whether this is a “threat” depends upon whether the particular use of force envisaged would be directed against the
territorial integrity or political independence of a State, or against the Purposes of the UN or whether it would necessarily
violate the principles of necessity and proportionality.
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• United Nations General Assembly, even if non-binding, may be used as evidence of state practice and opinio juris. It has
probative values.
• No opinio juris:The non-use of nuclear weapons was susceptible to two explanations.
• It may be said that the states don’t like.
• However, the nuclear states may say that there is no need for them to use it because it is an effective deterrent to armed
conflicts.
• Final catch-all provision of the Hague Convention: Marten’s clause: In default of specific treaty or legal basis, “mankind
continue to be under the protection of public international law, public conscience and laws of humanity.”
Collective Measures through UN: Security Council ’s Action
Action under Chapter VI--Recommendations

Security Council may investigate any dispute or situation that may endanger international peace and security: art.34 UN
Charter.
Security Council may, at any stage of a dispute, recommend appropriate procedures or methods of adjustment of disputes: art.
36 UN Charter.
• Methods include “negotiation,enquiry,mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means”: art.33 UN Charter.
Action taken under Chapter VI is subject to the domestic jurisdiction limitation in art.2(7) UN Charter.
• However, enforcement measures under Chapter VII are not: art.2(7) UN Charter.
Action under Chapter VII -- Jurisdiction

Article 39 UN Charter
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
Security Council enjoys broad discretion in the assessment of the situation and the gravity of the danger
✴ In practice, the existence of breaches of the peace or acts of aggression is usually not specifically determined.
➡ Therefore, the most concerned issue is threat to the peace.
✴ Threat to the peace
• Not restrict to inter-state conflicts
✓ An extreme violence within a State can give rise to Chapter VII enforcement action.
• Violations of human rights and humanitarian law are also considered.
‣ This evolution of the concept of a threat to the peace reflects the increased importance of the individual in the
international legal order, but it does not warrant the conclusion that any severe violation of human rights would
give rise to Security Council action under Chapter VII.
✓ The Security Council enjoys its far-reaching powers only for matters of peace and security.
➡ Thus, it is necessary that the threat to the peace be some way linked to a present or impending
armed conflict or other destabilisation of the security of a country or region.
• The undemocratic government issue cannot be imposed by the Security Council, unless it is coupled with a crisis
which itself constitutes a threat to the peace.
‣ Rationale: the Security Council is, in principle, limited to short-term crisis management, but may not take binding
measures with a view to establishing a peaceful international order in general.
• Increasing efforts have put into terrorism, through both general statements and concrete action.
✴ Breach of the peace
• Include any use of armed force, however, rarely been found to have occurred.
‣ Examples include Korea case, the Falkland Island War, the Iran-Iraq War and the Invasion of Kuwait case
✴ Act of aggression: Resolution on the Definition of Aggression 1974
• Aggression is defined in art.1
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‣ Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State, or in any other manner inconsistent with the Charter of the United Nations.
- Limited to armed force, excludes economic aggression
• Type of aggression: art.3, not an exhaustive list. (page 800)
- However, a coastal State is not committing aggression when it takes action in the enforcement of its maritime
rights.
• Difference between “a war of aggression” and aggression: art.4
‣ A war of aggression is a crime against international peace
➡ Results in individual criminal responsibility
‣ Aggression gives rise to international responsibility.
➡ Gives rise only to State responsibility of a civil kind, with an obligation only to make reparation.
Action under Chapter VII: Powers

Enforcement action under Chapter VII involving armed force.
• Article 42 would be effected by the United Nations using armed force provided by Member States in accordance with
bilateral agreements between each of them and the Security Council under art. 43.
- Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to
be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea,
or land forces of Members of the United Nations: art.42 UN Charter
‣ It is up to the Security Council to decide whether to take military action and to which degree.
✓ In the absence of a specific decision in this regard, the use of force by States to implement Security
Resolutions is unlawful, unless it can be based on independent legal grounds.
• Nevertheless, it should be mentioned that in the absence of agreements under art.43, the Security Council is able to take
measures under art.42, in particular through the authorisation of member States to use force.
- Examples include Somalia, Rwanda, etc.
In the case of Korea, the Security Council merely recommended that States provide assistance to South Korea in repelling the
North Korean attack on the basis of collective self-defence under art.51.23
In the case of the invasion of Kuwait, the Security Council relied on art.42 to authorise member States to repel the Iraqi
invasion of Kuwait. 24
Measures Short of Armed Force
Under art.41, the Security Council may call upon the Members of the United Nations to apply such measures including
complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.
Non-military enforcement action.
The Powers of the General Assembly
Art.12 UN Charter is designed to prevent clashes between the Security Council and the General Assembly
• While the Security Council is exercising its functions with regard to a particular dispute or situation, the General Assembly
shall not make any recommendation unless the Security Council so requests.
• The General Assembly, concerned at the inaction of the Security Council and its failure to play the role provided in the
Charter.
‣ Rationale: according to art.11(2), Security Council has a primary but not an exclusive responsibility for the
maintenance of international peace and security.
In practice, art.12 has been gradually eroded.

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• The General Assembly has made recommendations even when the Security Council was dealing actively with an issue.
‣ If the Security Council was not actually exercising its function at that moment, or if a resolution was blocked by a
veto, the General Assembly has assumed it is free to make recommendations, provided that these did not directly
contradict a Security Council Resolution.
The Domestic Jurisdiction Limitation
According to art.2(7), if the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a
matter which by international law is solely within the domestic jurisdiction of that party, the Council shall make no
recommendations as to its settlement.
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13.Settlement of Disputes
Arbitration
Arbitration was defined by the International Law Commission as “a procedure for the settlement of disputes between States
by a binding award on the basis of law and as a result of an undertaking voluntarily accepted”.
The World Court
Organisation
The World Court is the name given to the Permanent Court of International Justice and the present International Court of
Justice.
• The Permanent Court of International Justice was established in 1920 under the auspices of the League of Nations.
• In 1946, it was replaced by the International Court of Justice according to art.92 of the United Nations Charter.
‣ The International Court of Justice is organised in accordance with the Statute of the International Court of Justice
which is a part of the United Nations Charter.
ICJ consists of fifteen members, no two of whom may be nationals of the same State: art.3 Statute of ICJ
• Judges are elected by the Security Council and the General Assembly according to a complicated procedure: art.4-14
Statute of ICJ
‣ The Court normally sits as a full Court of 15 judges, although cases may be referred to an ad hoc chamber of three
or more judges: art.25 Statute of ICJ
- There is no appeal from a chamber decision to the full Court.
• The members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities:
art.19 Statute of ICJ
National and ad hoc judges
• A judge of the nationality of a State party to a case “retains the right to sit in the case”: art.31(1) Statute of ICJ
• A party that does not have a national on the Court may choose an ad hoc judge to sit in the case: art.31(2)-(3) Statute
of ICJ
- When one party has a national, the other may choose an ad hoc judge; (2)
- When both parties do not have nationals, both parties may choose. (3)
Access in Contentious Litigation
Only States may be parties to cases before the Court: art.34 Statutes of ICJ
• However, international organisation may also bring claims before the Court: Reparations case
The Court “shall be open to the States parties to the present Statute”: art.35(1) Statute of ICJ
• Parties to the Statute:
‣ All UN members are parties to the Statute: art.93 UN Charter
‣ Non-UN member States may become parties to the Statute by complying with the conditions set by the General
Assembly on the recommendation of the Security Council: art.93(2) UN Charter
• Non-parties
‣ A State not a party to the Statute may have access to the Court by making a declaration accepting its jurisdiction:
art.35(2) Statute of ICJ
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Jurisdiction
Article 36 Statute of ICJ

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognise as compulsory ipso facto and
without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation ;
d. the nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or
certain states, or for a certain time.
The jurisdiction of the Court is based on the consent of States: Mutual Assistance case
• Consent can take the following forms:
✴ Expressed by special agreements or a treaty: art.36(1) Statute of ICJ;
✴ Made by a unilateral declaration without special agreement: art.36(2) Statute of ICJ;
• Known as the “optional clause” -- A State may make an unilateral declaration by which it accepts the Court’s
jurisdiction in all “legal disputes” vis-a-vis all other States that make such declaration.
✴ Forum prorogatum: Mutual Assistance case
Declaration
• Reservation available
‣ The Court has accepted that States may attach reservations to their declarations in addition to conditions,
(conditions allowed in art.36(3))
‣ Types of reservation:
- ratione personae --> reservations relating to other parties
- ratione temporis --> reservations relating to time
- ratione materiae --> reservations as to subject matter
‣ In relation to any other State accepting the same obligation = principle of reciprocity
• Court’s jurisdiction vis-a-vis any other State only in so far as that State has accepted it also.
➡ If State A makes a declaration subject to reservation X and State B makes one subject to reservation Y, the
Court has jurisdiction to hear disputes between these two States only insofar as they are not covered by
reservations X or Y.
➡ Jurisdiction is conferred on the Court only to the extent to which the two declarations coincide in
conferring it: Anglo-‐Iranian Oil Co. case
➡ Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to
rely upon the reservations to the acceptance laid down by the other Party: Interhandel case
‣ Interpretation of the reservation
• Interpreting the relevant words of a declaration including a reservation contained therein in a natural and
reasonable way, having due regard to the intention of the State concerned at the time when it accepted the
compulsory jurisdiction of the Court.
• “Contra proferentem” rule has no role to play in interpreting the declaration made under art.36(2): Fisheries
Jurisdiction (Spain v Canada) case
• Termination of declaration
‣ A declaration for an indefinite period of time was terminable on “reasonable” notice: Nicaragua case (Jurisdiction
and Admissibility)
- Notice should be given.
- Termination should not be allowed unless a reasonable period after the notification, usually, six months.
‣ A declaration that is made for a ‘certain time’ and upon the end of this period is terminable upon notice.
Forum prorogatum can be inferred from:
• Making an unilateral application under art.40(1) of the Statute of ICJ: Mutual Assistance case; Corfu Channel case
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• The participation of a State in the proceedings in the case: Mavrommatis (Merits) case; Rights of Minorities in Polish
Upper Silesia case
✓ However, the participation of a State in the proceedings should not be “solely for the purpose of challenging that
jurisdiction”: Armed Activities case (New Application: 2002).
Forum prorogatum
1. France failed to respond to a request Certain Questions of Mutual Assistance in Criminal Matters
by Djibouti asking that the French Djibouti v France (2008)
authorities send it their judicial Consent of jurisdiction
investigation file into a case involving the
death of a French judge on secondment in The jurisdiction of the Court is based on the consent of States, under the conditions expressed therein.
Djibouti for the purposes of a judicial
investigation in Djibouti, which breached its
obligation under a bilateral treaty of Types of Consent
mutual assistance in criminal matters Neither the Statute of the Court nor its Rules require that the consent of the parties which thus confers jurisdiction on the Court
between the two States. be expressed in any particular form.
2. Djibouti had commenced proceeding in the
case by filing an unilateral application ➡ Thus, in accordance with Article 36, paragraph 1, of the Statute, such consent may result from an explicit agreement of the
against France under art.40(1), Statute of parties, that agreement being to be manifested in a variety of ways.
ICJ.
3. In response, in a letter to the Court, France
➡ ...Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum.
expressly agreed, under art.38(5), Rules of • This modality is applied when a respondent State has, through its conduct before the Court or in relation to the applicant
the Court, to the Court’s jurisdiction in the party, acted in such a way as to have consented to the jurisdiction of the Court.
case.
In the case, the Court explored the nature of
its forum prorogatum jurisdiction. Forum prorogatum
For the Court to exercise jurisdiction on the basis of forum prorogatum, the element of consent must be either explicit or clearly
to be deduced from the relevant conduct of a State.
• In the present case, the Court has jurisdiction where the parties give their consent by separate acts expressly or impliedly
accepting it, one of those acts being the making of an unilateral application under art.40(1) of the Statute of ICJ by Djibouti.
Reservation
1. Switzerland brought the claim against
US for the restitution of the assets of Interhandel case
Interhandel, a Swiss company, in the US.
2. The property had been taken by the US in Switzerland v U.S.
1942 on the ground that Interhandel was Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation
German, and so enemy, controlled.
3. After several years of negotiation with US,
to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration.
in 1948, Switzerland asked the US to ➡ Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the
return the property. reservations to the acceptance laid down by the other Party.
4. On July 26, 1948, US refused to do so.
5. After unsuccessful court proceedings in
US, in 1957 Switzerland instituted Norwegian Loans case
proceedings under the ‘optional clause’. France v Norway (1957)
1. France brought this claim against
Norway under the “optional clause” In the present case, the jurisdiction of the Court depends upon the Declarations made by the Parties in accordance with art.
on behalf of French holders of Norwegian 36(2), Statute of ICJ on condition of reciprocity;
bonds.
2. Norway objected to the Court’s jurisdiction ➡ Since two unilateral declarations are involved, such jurisdiction is conferred upon the Court only to the extent to which the
on several grounds. Declarations coincide in conferring.
Norway won. • A comparison between the two Declarations shows that the French Declaration accepts the Court’s jurisdiction within
narrower limits than the Norwegian Declaration;
• Consequently the common will of the Parties, which is the basis of the Court’s jurisdiction, exists within these narrower
limits indicated by the French Declaration.
Nicaragua case (Jurisdiction and Admissibility)

Nicaragua v US (1984)
101

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Third States
General principle: No jurisdiction to rule on the rights and obligations of third States --> due to consent.
• The Court may not give judgment on a case between State A and B that would require it to rule upon the international
law rights and obligations of State C where that third State had not given its consent to this happening by becoming a
party to the case: East Timor case
However, third party may be involved according to art.62 and 63 of the Statute of ICJ
• Where a State considers that it has an interest of a legal nature which may be affected by the decision, it may submit a
requires to the Court: art.62
• Land, Island and Maritime Frontier Dispute case (EI Salvador v Honduras)
• Where a State is a party to a treaty that is being interpreted by the Court, it may be permitted for its intervention: art.63
• Wimbledon case
• Haya de la Torre case
1. Portugal commenced proceedings East Timor case

against Australia, in which it Portugal v Australia
maintained that by concluding an One of the fundamental principles of its Statute is that ICJ cannot decide a dispute between States without the consent of those
agreement and continuing negotiations
with Indonesia over the delimitation of the States to its jurisdiction.
continental shelf between Australia and ➡ The Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the
East Timor, Australia infringed the rights of
the people of East Timor to self-
lawfulness of the conduct of another State which is not a party to the case.
determination and permanent sovereignty
over their natural resources and the rights In the present case, the effect of the judgment requested by Portugal would amount to a determination that Indonesia’s entry
of Portugal as administering power.
2. Australia contended that the Court could into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in
not rule upon the application without ruling matters relating to the continental shelf resources of East Timor.
on the rights and obligations of Indonesia,
which had not consented to the jurisdiction
➡ Thus, Indonesia’s rights and obligations would constitute the very subject-matter of such a judgment made in the absence of
of the Court. that State’s consent.
The Court held it could not exercise the • In this case, Indonesia had no wish to become a party to the case and, unlike Australia, could not be brought before the
jurisdiction conferred upon it under art.36(2)
to adjudicate upon the dispute. Portugal
Court under art.36(2), as it had not made an “optional clause” declaration.
failed. ★ Such a judgment would run directly counter to the “well-established principle of international law embodied in the Court’s
Statute, namely, that the Court can only exercise jurisdiction over a State with its consent”.
1. On January 7, 1982, brothers Karl
Provisional Measures
and Walter Bernhard LaGrand
bungled an armed bank robbery in
Marana, Arizona, United States, killing a
man and severely injuring a woman in the The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought
process.They were subsequently charged to be taken to preserve the respective rights of either party: art.41 Statute of ICJ
and convicted of murder and sentenced to
death. • The provisional measures under Article 41 have binding effect: Lagrand case
2. The LaGrands were German nationals, • Provisional measures may be ordered even before the Court can satisfy itself that it has jurisdiction on the merits of the
having been born in Germany.While they case, unless the provisions (convention) provided otherwise: Genocide Convention case.
had both lived in the United States since
they were four and five, respectively,
neither had officially obtained U.S. Lagrand case
citizenship.
3. As foreigners the LaGrands should have
Germany v US
been informed of their right to consular Whether ‘provisional measures’ has binding force under the Statute of ICJ?
assistance, under the Vienna Convention, Treaty (convention) interpretation:
from their state of nationality, Germany.
4. However the Arizona authorities failed to • The object and purpose of the Statute is to enable the Court to fulfil the functions provided therein.
do this even after they became aware that • The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise
the LaGrands were German nationals. of its functions because the respective rights of the parties to a dispute before the Court are not preserved.
5. The LaGrand brothers later contacted the
German consulate of their own accord, ➡ That the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in
having learned of their right to consular question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the
assistance.
6. On the day before the execution of Walter
parties as determined by the final judgment of the Court.
LaGrand, Germany filed an application
instituting proceedings against the US Whether ‘provisional measures’ in art.41 is a kind of decision that shall be followed according to art.94 of UN Charter?
under art.36(1) ICJ Statute.
7. On March, the Court indicated provisional
measures aimed at ensuring that Walter 102
LaGrand was not executed while the case
was pending.
8. However, he was executed on the same
day.

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• ‘The decision of the ICJ’ in art.94(1) could be understood as referring not merely to the Court’s judgments but to any decision
rendered by it, thus including orders indicating provisional measures.
➡ Therefore, the binding nature of the provisional measure is confirmed according to art.94(1).
Advisory Jurisdiction
According to art.65 of the Statute of ICJ, the Court may give an advisory opinion on any legal question at the request of
whatever body may be authorised by or in accordance with the UN Charter.
• Article 96(1) of the UN Charter entitles the General Assembly or the Security Council to request the ICJ to give an
advisory opinion on any legal question. Other organs and special agencies are entitled under art.96(2).
• The Statute leaves a discretion as to whether or not it will given an advisory opinion that has been requested: Legality of
the threat or use of nuclear weapons case
‣ However, only “compelling reasons” could lead it to such a refusal:
- Lack of jurisdiction: the WHO Nuclear Weapons case
- The nature of the advisory opinion would be deciding the dispute without the consent of one of the parties and
without its account of the facts: Eastern Carelia case
The World Court and the Security Council
Both the Court and the Security Council may exercise jurisdiction in a case or matter at the same time.
• The Security Council’s power is restricted only to the principles and objects which appear in Chapter I of the Charter.
• The primary responsibility is prescribed in art.24 of the Charter -- maintenance of international peace and security
• Article 24 of the Charter is automatically to make all decisions of the Security Council binding: Legal Consequence
case
• The General Assembly cannot make any recommendation with regard to a dispute or situation: art.12 of the Charter
• By Contrast, Court is the principle judicial organ of the United Nations, to resolve any legal questions that may be in issue
between parties to the dispute.
The Court has no power of judicial review or appeal in respect of Security Council action: Legal Consequence case
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Extremely Detailed Public International Law Notes - 88D

Public International Law (University of Sydney)

StuDocu is not sponsored or endorsed by any college or university

Nature of International Law

Development of International Law

Is International Law, law?

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Binding: Why Do States Comply with International Law?

Inherent order Natural Law view

Diﬀerence between Public International Law & Private International Law

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2. Sources of International Law

Article 38(1) Statute of the International Court of Justice

Article 38 of International Court of Justice

International Conventions (Treaties)

Customary International Law

1 For more information, see topic 6.

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2. Sources of International Law

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2. Sources of International Law

Treaty v Customary International Law: Nicaragua (Merits) case

Article 53, 1969 Vienna Convention on Treaties

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2. Sources of International Law

• According to the facts, no such custom was found.

Provision should be norm-creating.

Passage of time immaterial in the formation of a new rule of CIL.

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2. Sources of International Law

Generally Accepted Principles of Law

Judicial Decisions and Works of the Most Highly Qualiﬁed Publicists

No Stare Decisis in International Law

As a general rule, UN Resolutions are NOT binding.

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2. Sources of International Law

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3. International Law vs Domestic Law

Australian Constitution is relatively silent on the status of international law.

Dualism and Monism

Municipal Law International Law

• Custom grown up within the boundaries of the

Social Relations • State-person relations, and State – State relations

2 Shaw, 2003. International Law, 5th ed.

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3. International Law vs Domestic Law

The “no common ﬁeld” approach (supported by Fitzmaurice and Rosseau)

The Theory of harmonisation (supported by O’Connell)

Municipal Law in International Law

International Law in Municipal Law

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3. International Law vs Domestic Law

Australian Law and Customary International Law

Relationship between common law and international law

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3. International Law vs Domestic Law

Effect of incorporation and transformation

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3. International Law vs Domestic Law

Treaties and Municipal Law: Basic Principles

Treaties can take several forms: