Exploring The Boundaries of International Law

Exploring the boundaries of international law
W821_1
Exploring the boundaries of

international law
Page 2 of 76 22nd November 2018
https://www.open.edu/openlearn/society-politics-law/exploring-the-boundaries-international-
law/content-section-0
About this free course
This free course is an adapted extract from the Open University

course W821 Exploring the boundaries of international law:
www.open.ac.uk/postgraduate/modules/w821.
This version of the content may include video, images and

interactive content that may not be optimised for your device.
You can experience this free course as it was originally designed

on OpenLearn, the home of free learning from The Open
University – www.open.edu/openlearn/people-politics-law/exploring-
the-boundaries-international-law/content-section-0
There you’ll also be able to track your progress via your activity
record, which you can use to demonstrate your learning.
Copyright © 2016 The Open University
Intellectual property
Unless otherwise stated, this resource is released under the terms

of the Creative Commons Licence v4.0
http://creativecommons.org/licenses/by-nc-sa/4.0/deed.en_GB. Within
that The Open University interprets this licence in the following
way: www.open.edu/openlearn/about-openlearn/frequently-asked-
questions-on-openlearn. Copyright and rights falling outside the
terms of the Creative Commons Licence are retained or controlled
by The Open University. Please read the full text before using any
of the content.
We believe the primary barrier to accessing high-quality

educational experiences is cost, which is why we aim to publish as
much free content as possible under an open licence. If it proves
difficult to release content under our preferred Creative Commons
licence (e.g. because we can’t afford or gain the clearances or find
suitable alternatives), we will still release the materials for free
under a personal end-user licence.
This is because the learning experience will always be the same

high quality offering and that should always be seen as positive –
even if at times the licensing is different to Creative Commons.
When using the content you must attribute us (The Open

University) (the OU) and any identified author in accordance with
the terms of the Creative Commons Licence.
The Acknowledgements section is used to list, amongst other

things, third party (Proprietary), licensed content which is not
subject to Creative Commons licensing. Proprietary content must
be used (retained) intact and in context to the content at all times.
The Acknowledgements section is also used to bring to your

attention any other Special Restrictions which may apply to the
content. For example there may be times when the Creative
Commons Non-Commercial Sharealike licence does not apply to
any of the content even if owned by us (The Open University). In
these instances, unless stated otherwise, the content may be used
for personal and non-commercial use.
We have also identified as Proprietary other material included in

the content which is not subject to Creative Commons
Licence. These are OU logos, trading names and may extend to
certain photographic and video images and sound recordings and
any other material as may be brought to your attention.
Unauthorised use of any of the content may constitute a breach of

the terms and conditions and/or intellectual property laws.
We reserve the right to alter, amend or bring to an end any terms

and conditions provided here without notice.
All rights falling outside the terms of the Creative Commons

licence are retained or controlled by The Open University.
Head of Intellectual Property, The Open University
978-1-4730-1895-2 (.kdl)
978-1-4730-1127-4 (.epub)
Contents
 Introduction
 Learning outcomes
 1 Personality in international law

 1.1 Non-state actors
 1.2 Achieving legal personality
 1.3 International organisations
 1.4 Individuals
 2 The concept of a state

 2.1 What constitutes a state?
 2.2 The recognition of a state
 2.3 The effects of recognition
 2.4 Self-determination
 2.5 ‘Failed’ states
 3 Sovereignty
 4 Jurisdiction
 4.1 General principles of jurisdiction
 4.2 Types of jurisdiction
 4.3 Principles of jurisdiction
 4.4 Extraterritoriality – protective jurisdiction and the

‘effects doctrine’
 Conclusion
 Further reading
 Keep on learning
 References
 Acknowledgements
Introduction
This OpenLearn free course is designed to provide you with an
introduction to key concepts which underpin the study of
international law. It introduces the concept of international legal
personality, explores the status of the state, examines the principle
of sovereignty and summarises the principles of jurisdiction. The
course focuses on areas which are of special relevance to
contemporary events.
The course begins by considering how legal status is achieved in

international law both for states and non-state actors. It then
focuses on the concept of the state. It considers how a state is
created and the implications of recognition or non-recognition of a
state by other states. The topical issues of self-determination,
secession, failed states and sovereignty are introduced. The
course concludes by explaining the principles and implications of
jurisdiction and considers some of its different and more
controversial applications.
This OpenLearn course is an adapted extract from the Open

University course W821 Exploring the boundaries of international law.
Learning outcomes
After studying this course, you should be able to:
 understand the concept of international legal

personality and the identity of the subjects of
international law
 understand the nature of a state and how a state is
created and recognised in international law
 understand the principle of sovereignty and of the
operation of jurisdiction
 critically engage with complex, current and emerging
legal and international issues.
1 Personality in international law

States have long been, and still are, the principal actors in
international relations. As such, they are recognised by customary
international law as possessing certain international rights and
duties and having the capacity to act internationally: they have
legal personality. An international legal person has the capacity to
make binding international agreements and to bring claims before
international and national tribunals to enforce rights given by
international law. Conversely, they are subject to obligations
imposed by international law.
1.1 Non-state actors

Certain non-state actors, such as international organisations, are
also recognised as being legal persons in international law. Other
entities, such as non-governmental organisations (NGOs), and
multinational corporations (MNCs), are active internationally, but
have more limited international status. In recent years, human
rights groups have highlighted the limitation of national law to
control the activities of MNCs operating in states with poor
governance, and have lobbied for the development of increased
international corporate accountability. The United Nations (UN)
Universal Declaration of Human Rights (UDHR) 1948 and
subsequent UN conventions are framed in terms that are wide
enough to encompass business organisations.
The Preamble to the UDHR declares that it is ‘a common standard
of achievement for all peoples and all nations, to the end that
every individual and every organ of society ’ are under an
obligation to promote the ideals set out in the declaration. In 2011
the UN Human Rights Committee endorsed John Ruggie’s Guiding
Principles for the implementation of the UN’s ‘Protect, Respect and
Remedy’ Framework for the protection of human rights in the
conduct of business.
John Ruggie, a Harvard professor, was appointed by the UN as

the Secretary-General’s Special Representative (UN SRSG) for
Business and Human Rights in 2005 to work on the issue of
human rights and MNCs.
Only states have international capacity to the full degree. Other

entities have international capacity to varying degrees depending
on their role within the international legal system. This is indicated
in Reparation for Injuries suffered in the Service of the United Nations
Advisory Opinion ICJ Rep 1949, 178:
The subjects of law in any legal system are not necessarily

identical in their nature or the extent of their rights, and their nature
depends upon the needs of the community.
1.2 Achieving legal personality

The nature and degree of international legal personality is
dependent on a complex set of factors. You will consider how
states come into existence in more detail in Section 2 of this
course. For the other subjects of international law, personality is
achieved when it is conferred, accepted or recognised by states. It
is ‘derived’ personality, rather than the ‘original’ personality, which
states achieve. Legal personality has been granted to territories
placed under mandates and also to populations of non-self-
governing territories. Insurgents and national liberation
movements, such as the Palestinian Liberation Organisation
(PLO), are capable of acquiring a limited form of legal personality.
This may enable them to enter binding legal agreements, be
bound by the principles of humanitarian law and participate in the
proceedings of the UN as observers. The PLO became an
observer in November 1974.
Figure 1 Yitzhak Rabin, prime minister of Israel, shaking hands with Yasser
Arafat, PLO chairman, after signing the Oslo Accords in Washington, DC
1993
View description - Figure 1 Yitzhak Rabin, prime minister of Israel,

shaking hands with Yasser Arafat, ...
1.3 International organisations

The legal status of the UN was considered in the International
Court of Justice’s Advisory Opinion in 1949 (quoted earlier).
Activity 1
Read Reparation for Injuries Suffered in the Service of the United
Nations, Advisory Opinion ICJ Rep 1949, p. 178, from the third
paragraph (‘But, in the international sphere ...’) to the end of the
penultimate paragraph on p. 179 (‘... by bringing international
claims’).
What conclusions did the ICJ come to on the question of whether

the UN has international legal capacity? Summarise the court’s
reasoning in this respect.
View comment - Activity 1
Since the Second World War there has been an expansion in the
numbers and types of international organisation that are
concerned with a wide variety of issues; in order to operate
effectively, they are recognised as having a limited degree of
international personality which varies according to their objectives.
The UN has confirmed that other international organisations are

the subjects of international law, even though they do not possess
general competence:
international organizations are subjects of international law which

do not, unlike States, possess a general competence. [But] are
governed by the ‘principle of speciality’, that is to say, they are
invested by the States which create them with powers, the limits of
which are a function of the common interests whose promotion
those States entrust to them.
(Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Advisory Opinion ICJ Rep 1996, 25)
In this case the advisory opinion of the ICJ had been requested by
the World Health Organization (WHO) on the question of the
legality of the use by a state of nuclear weapons in armed conflict.
The ICJ considered that it was unable to give this opinion as
although the WHO was duly authorised under the UN Charter to
request opinions from the court and the opinion requested was a
legal question, it was not a question that was within the scope of
the activities of the WHO. The question from WHO did not relate to
the effects of the use of nuclear weapons on health but to the
legality of these weapons in view of their effect on human health
and the environment. However, the UN General Assembly was
held to be competent to ask the question.
This case reveals that international organisations do not have

international personality for all purposes; it is derived and so
depends on the express powers included in the constitution of the
organisation concerned and on the existence of implied powers
which enable the organisation to achieve its purposes: ‘the
necessities of international life may point to the need for
organizations, in order to achieve their objectives, to possess
subsidiary powers which are not expressly provided for in the basic
instruments which govern their activities’ (Legality of the Use by a
State of Nuclear Weapons in Armed Conflict Advisory Opinion ICJ Rep
1996, 25).
1.4 Individuals
Under the Westphalian construct states assert sovereignty over
individuals within their jurisdiction and there is little scope for the
recognition of the individual in international law. International rights
and/or obligations are not conferred on individuals directly. The
events of the Second World War created renewed impetus to
protect human rights and freedoms at the international level. The
UDHR 1948 and subsequent conventions codified human rights for
the first time at an international level; states are obliged to respect
the rights of individuals. However, there are few mechanisms for
enforcement of their rights by individuals. The right of challenge of
infringements of international human rights is invariably via the
state and/or by an international organisation’s application to the
relevant international tribunal. In this sense individuals remain the
objects of international law, rather than subjects with the right to
take action.
On some occasions individuals may be able to institute criminal

proceedings against those accused of international crimes in their
national courts.
Example of war crimes in national law
The War Crimes Act 1991 allows prosecution of a person who is

now a British citizen or who is now resident in the UK, for murder
and related crimes in respect of violations of the laws and customs
of war committed in the Second World War.
Under this Act the English courts have been given jurisdiction over
matters which are offences in international law.
In practice, this type of remedy cannot be relied on by individuals

who live in repressive regimes and in states with a record of poor
governance.
Some treaty regimes provide for an individual right to petition an

international body: this is referred to as ‘procedural personality’.
Examples of the right to petition international bodies
The European Convention on Human Rights (ECHR) 1950 permits

individuals to make a claim to the European Court of Human
Rights (ECtHR) alleging infringements of the rights embodied in
the Convention.
Article 24 of the International Labour Organization (ILO)

Constitution 1919 provides that employee and employer
representatives can submit a complaint to the ILO Office
demanding that member states comply with the terms of a ratified
ILO Convention.
Individuals can bring the alleged infringements to the attention of
the Prosecutor of the International Criminal Court (ICC), but they
cannot institute proceedings.
The UN International Covenant on Civil and Political Rights

(ICCPR) 1966 provides that an individual has the right to petition
the Human Rights Committee directly as a victim of a violation of
human rights – so long as the state of his/her nationality has
signed the Optional Protocol.
These types of mechanism provide limited individual redress as in

most cases they rely on the will of another body to act on them and
are not available unless the state concerned is a party to the treaty
providing the right of petition. Also, a state can, in theory, decide to
terminate its membership of the treaty provisions, although the
political and diplomatic ramifications of taking this step means that
in practice withdrawal from treaty provisions are rare. Despite
these reservations, if measured by the number of applications
made to it, the ECtHR is a great success. There were
approximately 151,600 applications pending on 1 January 2012.
Many applications raise similar legal issues and are then
considered jointly. In 2011 the ECtHR delivered 1157 judgments
(ECtHR, 2012).
Example of affirmation of human rights by ICJ: the Palestinian

people
In a 2004 advisory opinion the ICJ confirmed the right of the
Palestinian people to self-determination and also Israel’s
obligations under humanitarian and human rights law. It was
considered that the construction of a wall in the Occupied
Palestinian Territory severed and displaced Palestinian
communities, restricted the movement of Palestinians, and
reduced access to vital services and to work and amenities. Israel
was required to make reparation for the damage suffered by
individuals affected by the construction of a wall (Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory Advisory Opinion ICJ Rep 2004, 136)
Antonio Cassese aptly sums up the current position of the

individual in international law:
they have a lopsided position in the international community. As far

as their obligations are concerned they are associated with all the
other members of the international community; in contrast, they do
not possess rights in relation to all members of that community.
Plainly all States are willing to demand of individuals respect for
some fundamental values, while they are less prepared to
associate them to their international dealings, let alone grant them
the power to sue States before international bodies.
(Cassese, 2005, p. 150)
On some occasions international law imposes obligations on

individuals separately from the obligation placed on the state which
they represent and/or of which they are nationals/citizens. For
instance, individuals may be personally accountable for war
crimes, genocide and crimes against humanity.
Figure 2 Trial of Radovan Karadžić – as President of Republika Srpska he

sought unification with Serbia; he was indicted for war crimes committed
against Bosnian Muslims and Bosnian Croats during the Siege of Sarajevo
and ordering the Srebrenica massacre
View description - Figure 2 Trial of Radovan Karadžić – as President of

Republika Srpska he sought unification ...
Individual accountability is imposed regardless of the provisions of

the national legal system to which the individual is subject, and in
this way international law impinges directly on the individual.
2 The concept of a state

Under the Westphalian system, states are the principal actors and
the primary subjects of international law. There are around 200
states of which some 193 are members of the UN. Under
international law states are regarded as having equal status.
Article 2(1) of the UN Charter provides that ‘the organization is
based on the principle of the sovereign equality of all its Members’.
This is regardless of the huge variations in size, population and
economic wealth of different states, and the disparities in political
and diplomatic power wielded by different states.
2.1 What constitutes a state?

For many centuries the concept of a state was ill-defined. In
practice there was a degree of fluidity in the control of the territory
and populations. A particular regime tended to be defined in terms
of location rather than territorial boundaries. However, rivers,
oceans and mountain ranges provided natural boundaries to early
kingdoms. Hadrian’s Wall and the Great Wall of China are notable
man-made demarcations of different kingdoms. Colonisation led to
the creation of artificial boundaries between areas under the
control of the different European states – most notably in Africa at
the end of the nineteenth century. Many of these territories then
became independent states, such as Zambia, Kenya and Sierra
Leone.
The states of the Middle East have emerged in a variety of ways.
At the end of the First World War the Sykes–Picot Agreement
1916 allocated the territories formerly under the control of the
Ottoman Empire to the allies – such as France and the UK– as
protectorates (mandates). Modern Iraq and Syria were both
established by this process. Other states, such as Saudi Arabia,
were formed from the amalgamation of territories held by different
tribal leaders.
The Montevideo Convention on the Rights and Duties of States

(the Montevideo Convention) 1933 sets out some generally
accepted benchmarks and provides a good starting point for
discussion; Article 1 provides that:
The state as a person of international law should possess the

following qualifications: (a) a permanent population; (b) a defined
territory; (c) government; and (d) capacity to enter into relations
with the other states.
 Permanent population – this refers to a population that

is linked to a specific piece of territory on a permanent
basis. The population must be reasonably stable. In
Western Sahara Advisory Opinion ICJ Rep 1975, 12, it
was established that nomadic tribes qualified as a
state, as they had links with the specific territory.
There is no requirement for the population to be
indigenous and the extent of social and cultural
cohesion required is unclear. In practice, most of the
population of a state will be its ‘nationals’ and have a
right to reside in that state. The criteria of qualification
for nationality is determined by national law. The size
of the population is immaterial; it can be as small as
San Marino at around 30,000 inhabitants, or as large
as China at around 1.3bn.
 Defined territory – this refers to the territory over which
control of the state is exercised, and which
demarcates the state from its neighbours. The size of
the territory of states can vary widely from Russia with
17 million km2 to the principality of Monaco with 2
km2. The borders of the state’s territory need to be
reasonably determinate. The existence of border
disputes does not necessarily affect the existence of
statehood; for instance, India and Pakistan exist as
states even though they have a long-standing
territorial dispute in Kashmir. The refusal to define the
extent of the state boundaries is not fatal to the
existence of statehood either; Israel has refused to put
maximum limits on its claims to the Palestinian
territories, but there is no doubt that Israel is a state.
The fact that territory is threatened or invaded by an
aggressor does not preclude or destroy the existence
of statehood. For instance, in 1990 Kuwait remained a
state even when invaded by Iraq. In the case of a new
state emerging out of civil war, the rebel group
claiming sovereignty will need to show control over a
sufficiently defined area to claim independent
statehood, as was the case in East Timor in
Southeast Asia, and South Sudan and Eritrea in
Africa.
 Government – statehood requires the existence of a
government in control of territory and population. It
needs to be effective. The degree of control that the
government has is likely to affect a state’s chances of
long-term survival. The structure and legitimacy of the
government are relevant to this issue only. The
Montevideo Convention does not demand that the
government is democratic or legitimate. The control
exercised by the government does not need to be
total. Civil war may provide a serious challenge to
effective government, but the state still exists in
international law, as in Libya in 2011 and Syria in
2012.
 Capacity to enter relations with the other states – this
element causes some difficulty, in theory, as it defines
one of the consequences of statehood. It is helpful to
focus on the requirement of legal capacity. Many
territories fulfil the other requirements of the
Montevideo Convention but are not states; for
instance, Hong Kong and New South Wales. Their
local/regional governments do not have the capacity
to enter relations with other states. For legal capacity
to exist there must be a degree of independence from
any other state. The apartheid government of South
Africa declared the black homelands (Bantustan),
such as Transkei and Ciskei, to be independent self-
governing states and so not within the borders of
South Africa. This act was not recognised by the rest
of the world, as in reality these areas were not
independent of South African control. The degree of
economic and social dependence on other states is
not relevant to the existence of capacity; rather, it is a
legal question of whether an entity has capacity to
enter relations as a matter of right. An entity may
satisfy the other criteria of the Montevideo Convention
which are based on fact, but fail on this legal
requirement.
2.2 The recognition of a state

A state may meet the requirements of the Montevideo Convention,
but in practice its existence needs to be politically accepted by
other states. Recognition of a state by another state signifies that
the recognising state accepts the other as having the capacities of
statehood. Recognition is an executive act; it is a decision
invariably based on political, economic and legal considerations.
Box 1 Acts of recognition

The act of recognition of a state may take different forms such as:
 formal pronouncement
 official letter to newly recognised entity
 statement before national court of the recognising
state
 opening of diplomatic relations may infer recognition.
Recognition may occur in different circumstances; for instance, it

may be recognition of:
 independence from federal authorities, such as the

recognition of the former republics of the Soviet Union
and of Yugoslavia
 the right of self-determination of that state – such as
the recognition of Eritrea as an independent state
from Ethiopia.
Recognition applies not just to states but to governments. It may

be recognition of a new government that has come to power
unconstitutionally or through a civil war. In these cases the
exercise by the new government of effective control over the
state’s territory is crucial. The failure to gain recognition may limit
that state’s or government’s position in the international system. It
will have difficulty becoming a member of international
organisations and participating in international conferences.
Recognition is a discretionary act. Unanimity of recognition is not
required. In practice the attitude of other states, especially
politically powerful states, is crucial to the success of an emerging
state. For instance, after the civil war in Pakistan in 1971, the
newly formed People’s Republic of Bangladesh received
widespread support and was quickly recognised as a state by the
majority of the international community. In contrast, recognition of
the Palestinian territories has been much more circumspect. So
far, the USA, UK and many other European states have not
recognised its existence as a state and its attempt to become a UN
member state stalled in 2011. It is a controversial candidate for
recognition of statehood, in contrast to Bangladesh, which became
a member of the UN relatively quickly after recognition in 1974.
Recognition implies a willingness to deal with the government of

that state as a lawful representative of that state. Recognition has
the potential to be used as a political tool by governments to
express their approval or disapproval of the emergence of the new
entity or government. The practice of the USA and many European
states is to recognise states but not governments; this allows
states to establish relations with a new regime but not officially
approve of it. For instance, prior to 2001 few states recognised the
Taliban as the government of Afghanistan but the existence of the
Afghan state was recognised.
Box 2 Degrees of recognition

Traditionally recognition may be:
 De jure – is the fullest kind of recognition and provides
uncontested legality to the state or government.
 De facto – this recognises the factual existence of a
state or government and the fact that the government
exercises control over a territory. It is more tentative
than de jure recognition; it suggests further enquiry
into the stability of the state or government. For
instance, following the Russian Revolution and the
overthrow of the Tsars in 1917, the UK recognised the
de facto existence of the Soviet Union in 1921, and de
jure in 1924.
2.3 The effects of recognition

The effect of recognition appears to be straightforward and is set
out in the Montevideo Convention.
Activity 2
Read Articles 3 and 6 of the Montevideo Convention and summarise
what you consider the effect of these articles to be.
The declaratory effect of Articles 3 and 6 may seem clear.

However, it has been argued that recognition by other states is a
vital part of statehood, providing something more significant and
constitutive:
The full international personality of rising communities [...] cannot
be automatic [...] as its ascertainment requires prior determination
of difficult circumstances of facts and law, there must be someone
to perform their task. In the absence of a preferable solution, such
as the setting up of an impartial international organ to perform that
function, the latter must be fulfilled by States already existing.
(Lauterpacht, 1978, p. 55)
The constitutive approach relies on the subjective and invariably

self-interested assessment of other states to determine the
existence of a state. It also raises questions about the degree of
recognition required for statehood. For instance, does it require
unanimity or would recognition by an international organisation be
sufficient?
The declaratory approach views recognition as the acceptance of

the factual occurrence of a state and not as a vital part of the
existence of statehood:
The existence or disappearance of the state is a question of fact

[...] the effects of recognition by other states are purely declaratory.
(Badinter, 1991, pp. 164–5)
This has been the preferred view and is supported by the wording
of the Montevideo Convention.
States are usually reluctant to recognise ‘maverick’ states or
governments who have breached international law as they risk
damaging their own reputations by doing so.
As you read earlier, the Montevideo Convention does not stipulate

that a state must have legitimacy and be democratic. In theory,
recognition does provide an opportunity for states to demand more
stringent standards of emerging states and governments in return
for recognition. For instance, the EC set out the criteria for the
recognition of the new post-Cold War Eastern European states in
Annex 1 of their 1991 Declaration on the ‘Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet
Union’ (Türk, 1993).
The UN, as an international organisation, does not possess

authority to recognise states or governments, but it does require
new states applying for membership to formally declare their
acceptance of the obligations in the UN Charter. The granting of
UN membership provides valuable evidence of statehood.
2.4 Self-determination
Entities seeking recognition often use the principle of self-
determination as a justification for the creation of a new state or
government. The concept was inserted into the UN Declaration on
the Granting of Independence to Colonial Countries and Peoples
1960, adopted by UN General Assembly Resolution 1514 (XV) of
14 December 1960. Former colonial territories gained the right to
independence by virtue of this principle (see Box 3).
Box 3 UN Declaration on the Granting of

Independence to Colonial Countries and
Peoples 1960
The Declaration declares that:
1. The subjection of peoples to alien subjugation,

domination and exploitation constitutes a denial of
fundamental human rights, is contrary to the Charter
of the United Nations and is an impediment to the
promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by
virtue of that right they freely determine their political
status and freely pursue their economic, social and
cultural development.
3. Inadequacy of political, economic, social or
educational preparedness should never serve as a
pretext for delaying independence.
4. All armed action or repressive measures of all kinds
directed against dependent peoples shall cease in
order to enable them to exercise peacefully and freely
their right to complete independence, and the integrity
of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-
Governing Territories or all other territories which
have not yet attained independence, to transfer all
powers to the peoples of those territories, without any
conditions or reservations, in accordance with their
freely expressed will and desire, without any
distinction as to race, creed or colour, in order to
enable them to enjoy complete independence and
freedom.
6. Any attempt aimed at the partial or total disruption of
the national unity and the territorial integrity of a
country is incompatible with the purposes and
principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the
provisions of the Charter of the United Nations, the
Universal Declaration of Human Rights and the
present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and
respect for the sovereign rights of all peoples and their
territorial integrity.
The words in Paragraph 2 of this declaration were subsequently

incorporated into Article 1 of the UN International Covenant of Civil
and Political Rights (ICCPR) 1966 and Article 1 of the UN
International Covenant of Economic, Social and Cultural Rights
(ICESCR) 1966.
Self-determination is now a well-established principle of customary

international law. The implications of the right of self-determination
extend beyond the conventional colonial independence situations.
Distinct ethnic and cultural groups within a state have relied on the
right of self-determination to declare their independence from the
existing state and assert statehood. In the case of the former
federal state of Yugoslavia, the existing federation dissolved as
different federal provinces, such as Croatia and Slovenia, each
proclaimed sovereignty. More commonly in these situations,
secession occurs; in this case the original state remains while the
part claiming independence secedes and becomes a new state.
The declaration of the Turkish Republic of Northern Cyprus is an
example of an attempted secession from the parent state: the
Republic of Cyprus.
Considerable uncertainty surrounds the right of self-determination.

The interpretation of ‘all peoples’ is unclear; for instance, do
‘peoples’ need to be defined by ethnicity and/or geography? If so,
what about citizens of a multi-ethnic state: can they be peoples?
Does the claim to self-determination need to be legitimate in
international law? What happens if it is made by force, as was the
case with the Turkish military invasion of Northern Cyprus and the
subsequent declaration of the Turkish Republic of Northern
Cyprus?
Would a right of self-determination trump any claim that the state

may have to ensure its continued existence? In other words: is it in
effect a right of secession? If so, then it would seem that the right
of self-determination has the potential to undermine the integrity of
the state in international law. Aggrieved groups within states would
be encouraged to make claims to secession that may be
unrealistic, encouraging internal instability in many states. There is
also concern for the possible political and economic implications
for global stability of a proliferation of micro-states, as it is likely
that international consensus would be much harder to achieve. A
narrower interpretation of self-determination is preferred by many
(see Box 4).
Box 4 Declaration on Principles of International

Law Concerning Friendly Relations and Co-
operation among States in Accordance with the
Charter of the United Nations, passed by UN
General Assembly Resolution 2625 of 24
October 1970 (commonly known as the Friendly
Relations Declaration)
The Friendly Relations Declaration declares that:
Nothing in the foregoing paragraphs shall be construed as

authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination
of peoples as described above and thus possessed of a
government representing the whole people belonging to the
territory without distinction as to race, creed or colour.
(p. 124)
The Friendly Relations Declaration indicates that the right of self-
determination is not a right of secession, and is limited to the self-
government of peoples or internal self-determination rather than
being a right of external self-determination. However, this is
caveated by the requirement that existing states respect the rights
and the self-determination of peoples. It is asserted that where a
state does not respect internal self-determination, people have
recourse to what is referred to as ‘remedial’ secession and
external self-determination may be an option.
The Arbitration Commission of the EC Conference on Yugoslavia

1991–93 (often called the Badinter Commission, after its Chair,
Robert Badinter), which dealt with matters arising after the
dissolution of the federal state of Yugoslavia, provided their
opinion on the nature of self-determination.
Activity 3
Read Opinion No. 2 of the Arbitration Commission, EC Conference
on Yugoslavia, in Pellet, A. (1992) ‘The Opinions of the Badinter
Arbitration Committee: A Second Breath for the Self-Determination of
Peoples’, European Journal of International Law, vol. 92, no. 1, pp. 183–
4, and consider its wider implications for the principle of self-
determination.
The moral imperative for the right of self-determination is difficult to
deny. However, the adoption of a wide interpretation of the right of
self-determination risks encouraging secessionist movements, with
the consequent proliferation of micro-states.
The recognition of the secession of a new state/government has

the potential to convert an internal rebellion or civil war into an
international conflict under which states are bound by the UN
Charter prohibitions on the use or threat of force.
Example of secession: Republic of Kosovo
Kosovo was an autonomous province until 1989. Its population is

approximately two million, of which some 90% are ethnic
Albanians with a Serb minority. After the dissolution of Yugoslavia
the province became part of Montenegro. Albanians in Kosovo
agitated for independence throughout the 1990s and this was
suppressed with military action by the Serbs. As a consequence
NATO intervened with air strikes to force the withdrawal of Serbian
forces. The UN Security Council passed Resolution 1244 of 10
June 1999 authorising the UN administration of the region and a
framework for resolving the political and legal status of the region.
The negotiations between Serbia and Kosovo failed to reach any

agreement and the parliament of Kosovo declared independence
from Serbia in February 2008.
The USA, UK, France, Germany and many other states
recognised Kosovo as a state. At the time of writing (November
2012) it had received some 95 diplomatic recognitions. In 2008 (18
February) the US Secretary of State, Condoleezza Rice, stressed
that it was a unique situation:
The unusual combination of factors found in the Kosovo situation –

including the context of Yugoslavia’s breakup, the history of ethnic
cleansing and crimes against civilians in Kosovo, and the extended
period of UN administration – are not found elsewhere and
therefore make Kosovo a special case. Kosovo cannot be seen as
a precedent for any other situation in the world today.
(Rice, 2008)
However, this view was not held by the Russia who regarded it as
breach of international law. Serbia and Montenegro challenged the
validity of Kosovo’s independence and the UN General Assembly
requested an advisory opinion from the ICJ.
Activity 4
Read Accordance with International Law of the Unilateral Declaration
of Independence in respect of Kosovo (Request for an Advisory
Opinion) ICJ Rep 2010, 141. You need to focus only on Section IV:
‘The Question Whether The Declaration Of Independence Is In
Accordance With International Law’ at paragraph 78.
Consider how the ICJ answered the question asked of it: ‘Is the
unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?’ (paragraph 1).
2.5 ‘Failed’ states

Traditionally, once a state becomes a state, it remains one even
when there is a loss of control by the government and subsequent
lack of law and order, with the possibility of anarchy. However, the
concept of a ‘failed state’ has developed, although as yet, there is
no accepted definition of what constitutes a failed state. Zartman
describes it as referring ‘to a situation where the structure,
authority (legitimate power), law, and political order have fallen
apart’ (Zartman, 1995, p. 1).
Such states invariably exhibit a range of humanitarian, legal and

security problems, such as civil wars, ethnic cleansing, mass
migration, environmental degradation and pandemics. These
states may have legal, but not actual sovereignty. The concept of
state failure is not reserved for cases of complete state collapse
into civil war or anarchy. It is a spectrum and arguably may include
states that are weak and struggling to meet their responsibilities,
such as Haiti, and, in the past, states such as Afghanistan and
Sierra Leone. In many cases failed states can no longer control
their territory and borders. Politically, they invariably lack
legitimacy and accountability and fail to protect the basic rights and
freedoms of their citizens. Economically, they are ineffectual and
corrupt.
The failure of a state is likely to have a wider regional and

international impact. Lawlessness is often not just confined within
the boundaries of the failed state; transnational crimes such as
drug smuggling, human trafficking and terrorism are able to
flourish. In Somalia, a commonly cited example of a failed state,
the lack of internal control allows piracy to flourish along the
western seaboard of the Indian Ocean.
The international community has become increasingly concerned

about the threat to global political and economic security and
stability posed by the instability of failed states. International
responses have been practical in the form of aid and, more
controversially, in offers of reconstruction, which involves a degree
of foreign intervention in the governance of the failed state.
Humanitarian interventions have been legitimised in certain
situations. In principle, however, the fact that a state has ‘failed’ is
not a justification for disregarding the sovereignty of the state. It
allows a limited international response, but then it risks failing to
address the international ramifications of the failed state. For
instance, an attack on the land bases of the Somalian pirates
within Somalia by foreign forces risks breaching international law.
3 Sovereignty
States are the main actors in the international system. The
sovereignty of the state is pivotal in the international system; it
provides the state with extensive power and authority.
Traditionally, sovereignty encompasses:
 Sovereign equality – states are regarded as equal in

international law regardless of their size, population or
wealth.
 Jurisdiction – states have authority to create laws and
enforce them.
 Power – to freely use and dispose of the territory
under the state’s jurisdiction and to perform activities
deemed necessary to the population.
 Duty of non-intervention – no other state should
intrude into the state’s territory – ius excludendi alios
(the right to exclude others).
 Sovereign immunity – the right of immunity from the
jurisdiction of foreign courts for acts performed by the
state in its sovereign capacity.
 Diplomatic immunity – the right of state
representatives acting in their official capacity to
immunity from the legal system of the state in which
they are operating.
 Rights – to respect for life and property of the state’s
nationals and state officials abroad.
Despite being central to the operation of the international system

the concept of sovereignty defies precise definition and has been
the subject of wide-ranging criticism.
4 Jurisdiction
An inherent element of sovereignty is the power to govern and to
legislate through the creation and application of domestic laws
which prescribe, proscribe, adjudicate and enforce over
individuals, subject to the jurisdiction of that state. In this section
you will explore the application and limits of state jurisdiction. For
instance, while it may seem obvious that jurisdiction extends to
events which occur within a state, it is less obvious whether a state
can extend its jurisdiction to its citizens/nationals when abroad or
to actions which although occurring abroad have an adverse
impact on the security of the state in question.
4.1 General principles of jurisdiction

The traditional starting place for a consideration of jurisdiction is
the judgment in the Lotus case, which you will look at in the next
activity.
Activity 5
Read pages 18–19 of Lotus (SS) Case (France v Turkey) PCIJ Rep
Series A 1927, no. 10 (the material is replicated in both English and
French), then summarise the court’s view on the nature and extent
of a state’s jurisdiction.
4.2 Types of jurisdiction

A distinction is made between prescriptive jurisdiction and the
jurisdiction to adjudicate and to enforce (Figure 3).
View description - Uncaptioned figure
Figure 3 Types of jurisdiction
A state has prescriptive jurisdiction to enact laws that are

applicable to individuals, property and events, both within and
outside its territory. National laws are able to bind its nationals
abroad and may be applicable to certain events or conduct abroad
that affect the state asserting jurisdiction. For instance, a state may
legislate for crimes that occur abroad which it considers a threat to
its security or to its economic interests. It is this type of jurisdiction
to which the second part of the excerpt from the Lotus judgment
refers.
Example of prescriptive jurisdiction: treason in the United Kingdom
In the UK the offence of treason may be committed by any person

who owes allegiance to the Crown, wherever the act of treason
took place.
The jurisdiction to adjudicate (the power to hear and settle legal
disputes) and the jurisdiction to enforce (the power to ensure
compliance with legal commands) are territorially limited. In
practice, this limits prescriptive jurisdiction as a state cannot
enforce its prescriptive jurisdiction within another state; the
operation of the police and the courts system are limited to the
territory of the state. It is this type of jurisdiction to which the first
part of the Lotus Judgment refers. A state cannot in the absence of
permission exercise prescriptive jurisdiction outside of its territory.
However, there are some rare occasions where states agree that
this should occur.
Example of adjudicative jurisdiction: the UK/Netherlands

Agreement 1999 permitted the trial of the two Libyan Lockerbie
bombing suspects by a Scottish court, according to Scots law, in
the Netherlands.
You will look at this case in more detail in Section 4.3.1 of this
course.
4.3 Principles of jurisdiction

There are several customary international principles which help to
determine jurisdiction in different situations.
4.3.1 Territorial principle
States have complete and absolute jurisdiction over people,
property and events in their territory. This encompasses objective
and subjective territoriality.
Part 1: Objective territoriality

 A state has jurisdiction over offences completed within
its territory.
Example of objective territoriality
In the Lotus case a collision occurred between a French

steamship, the SS Lotus, and the Turkish steamship, the SS Boz-
Kourt on the high seas, which resulted in the deaths of people on
the Turkish ship. When the French ship went into a Turkish port
the French officer of the watch was arrested. The PCIJ held that
Turkey was entitled to assert jurisdiction as the collision involved
deaths which occurred on a vessel flying the Turkish flag to which,
under customary international law, Turkish domestic jurisdiction
applied. Ships and aircraft are treated for jurisdictional purposes as
if they are floating territory of the state of registration and so the
act of the Lotus in colliding with the Turkish ship was therefore
regarded as an act completed within Turkish territorial jurisdiction.
The objective approach has on occasions been extended to

encompass the state in which the effect of the crime occurs, even
though the crime may have been planned and committed in
another jurisdiction. This is sometimes referred to as the ‘effects
doctrine’. Its application can be controversial and will be
considered in more detail in Section 4.4 of this course.
Part 2: Subjective territoriality

 A state has jurisdiction over offences and matters
commencing in its territory, even if other elements of
the offence take place in another state.
Examples of subjective territoriality
With regard to ‘Lockerbie’, a bomb was put on board an American

plane, Pan Am Flight 103, in Malta and this entitled Malta to claim
jurisdiction. The UK asserted jurisdiction on an objective territorial
basis; as the bomb exploded over Lockerbie in Scotland the
offence had been completed in UK territory. Section 59 of the
Terrorism Act 2000 gives the UK jurisdiction over the offence of
incitement to commit certain terrorist offences if the incitement
occurs within the UK, even if the crime is completed outside UK
territory.In the past, the UK has taken a restrictive approach to
subjective territoriality, even though international law permitted its
use. However, in recent years, with increased emphasis on
transnational crimes such as terrorism, money laundering, drug
and people trafficking, there has been a move towards subjective
territoriality.
Some states now assert territorial jurisdiction based on peripheral

contact with the territory. For instance, the US Foreign Corrupt
Practices Act 1977 requires only limited territorial connection – a
US bank account, foreign transaction using dollars and financial
transactions routed through the US banking system have been
enough to engage US jurisdiction.The absolute nature of territorial
jurisdiction is on occasions modified by international law and by
agreement. The common example given is diplomatic immunity,
i.e. it is accepted that the state does not exercise its jurisdiction
over foreign diplomats on its territory.
4.3.2 Nationality principle

 States are able to assert jurisdiction over their
nationals even when they are abroad.
Examples of the assertion of the nationality principle
In the Trial of the Earl of Russell (1901) AC 446, a UK national was

convicted of bigamy even though the second marriage took place
outside the UK. This nationality principle also applies to the crime
of murder. For example, a British national can be prosecuted in the
UK for a murder committed abroad.Corporations are deemed to be
subject to the jurisdiction of the state in which they are
incorporated and ships and aircraft are subject to the jurisdiction of
the state in which they have registered.Jurisdiction cannot be
exercised until the national comes within the territory of his or her
state.
In the majority of cases the state will decide to take no action
where the matter has already been dealt with by the state in whose
territory the events occurred. Nationality jurisdiction is rarely relied
on in practice. However, it is useful in resolving issues of
jurisdiction in places beyond the territorial jurisdiction of any state,
such as on the high seas where jurisdiction is determined by the
country of registration of the vessel.
Another example is that of Antarctica where the nationality of the

camp or expedition concerned determines the jurisdiction to be
applied.Territoriality and nationality are discrete independent
bases of jurisdiction. However, there can be an overlap. The same
conduct or activity may provide a basis for exercise of jurisdiction
by the territorial state and by the state of nationality. Territoriality is
considered the normal, and nationality an exceptional basis for the
exercise of jurisdiction.
4.3.3 Passive personality

Some states have asserted ‘passive personality’ jurisdiction, which
is determined by the nationality of the victim. For instance, in the
Lotus case, Turkey’s additional ground for claiming jurisdiction was
that the victims were Turkish. The potential application of this
principle is far reaching and controversial. However, its application
does help address the issue highlighted in 1985 when the Italian
cruise ship, the Achille Lauro, was hijacked in Egyptian waters by
Palestinian terrorists demanding the release of Palestinian
prisoners by the Israeli government. Their only victim was a
Jewish, US national. At the time, Israel, the state against whom the
act of terrorism was directed, did not have any jurisdiction and so
couldn’t take action.
However, in recent years the passive personality principle has

begun to receive limited international recognition and it has been
incorporated into international agreements; treaties addressing the
various aspects of terrorism now, on occasion, encompass the
passive personality principle.
Box 5 UN Convention Against Torture and Other

Cruel, Inhuman Treatment or Punishment 1984
Article 5 states that:
Each State Party shall take such measures as may be necessary

to establish its jurisdiction over the offences referred to in article 4
in the following cases:
a. When the offences are committed in any territory

under its jurisdiction or on board a ship or aircraft
registered in that State.
b. When the alleged offender is a national of that State.
c. When the victim is a national of that State if that State
considers it appropriate.
4.3.4 Protective principle
 States may assert that they have authority over
matters that constitute a threat to state security and
from which the state needs to protect itself.
Example of the protective principle
The protective principle was argued in DPP v Joyce [1946] AC 347

– that the actions of William Joyce (Lord Haw-Haw), a British
national, in broadcasting Nazi propaganda from Germany were
harmful to the interests of the UK.States have developed the
protective principle to claim jurisdiction over those who are not
nationals but whose actions have an adverse effect on the state
irrespective of where those actions have been committed. It has
been applied in cases such as espionage, counterfeiting of
currency and drug trafficking.
4.3.5 Universality
A few crimes are considered so serious that it is in the interest of
all states to proscribe them. Certain crimes have traditionally been
regarded as universal crimes and the jurisdiction to try them is
international.
Examples of universal crimes, piracy and hijacking, war crimes,

crimes against humanity and genocide.
The scope and application of universal jurisdiction is uncertain.

Although states recognise the universality principle, there are few
cases where states are prepared to assert jurisdiction where there
is no connection with the proscribed act or the individual accused
of committing it. For instance, in recent years Kenya has been
reluctant to try suspected Somali pirates who commit acts of piracy
on the high seas. Kenyan domestic jurisdiction extends only to
acts of piracy in territorial waters. Although the UN Convention on
the Law of the Sea (UNCLOS) 1982 allows states to arrest pirates
wherever they are operating and bring them to trial in the state’s
domestic judicial system, it requires states to enact the appropriate
domestic legislative provisions in order to do so. Courts in several
European states have asserted jurisdiction on this basis over the
officials of foreign governments accused of torture and crimes
against humanity in other states and this has the potential to cause
political and diplomatic tension.
Example of crimes against humanity: General Pinochet
In 1998, General Pinochet, the former military dictator of Chile,

was arrested in London on an arrest warrant issued in Spain on
charges of torture and genocide committed in Chile during his rule
in the 1970s.
The UN and the European Parliament supported the extradition

request. The government of Chile was ambivalent to the situation
as it highlighted the divisions within their political elite. The UK
government, while condemning the Pinochet regime was loath to
upset the Chilean government, in view of the UK’s lucrative arms
trade with the country and in the light of Chile’s support against the
Argentinian invasion of the Falklands in 1982.
The attempt to hold Pinochet accountable eventually failed in 2000

when the UK government decided not to proceed with the
extradition and released Pinochet on the grounds of ill health.
One of the controversial issues in the Pinochet case was whether

such an approach violated the immunity of foreign government
officials when travelling abroad. Pinochet was a former head of
state, but in Arrest Warrant of 11 April 2000 (Democratic Republic of
the Congo v Belgium) ICJ Rep 2002, 11 the ICJ held that an arrest
warrant issued by the Belgian authorities against the Minister of
Foreign Affairs of the DRC for war crimes and crimes against
humanity did not respect his immunity from criminal jurisdiction
under international law. This case and other similar prosecutions in
Belgian courts caused considerable controversy, and under
international pressure Belgium repealed the provisions of its
domestic legislation that made such prosecutions possible.
The application of universal jurisdiction in these cases gives rise to

some complex questions, some of which are highlighted in the
next activity.
Activity 6
Read Orentlicher, D. F. (2004) ‘Whose Justice? Reconciling Universal
Jurisdiction with Democratic Principles’, Georgetown Law Journal, vol.
92, no. 6, pp. 1057–1134.
This is a long article and for the purposes of this activity you need
only read Section I. Then consider the nature of the issues raised
by the author in that section of the article.
4.4 Extraterritoriality – protective

jurisdiction and the ‘effects doctrine’
The second part of the Lotus judgment would appear not to require
a nexus between the state and the exercise of prescriptive
jurisdiction outside the state – subject only to the existence of any
rules of international law prohibiting it. In practice, states asserting
extraterritorial jurisdiction usually have some connection with the
person or events over which they are claiming jurisdiction. As you
saw earlier, both nationality and territoriality jurisdiction allow the
state on certain occasions to assert extraterritorial jurisdiction over
acts that take place outside the territory of the state and over the
activities of non-nationals. In recent years many states, most
notably the USA, have used the ‘effects doctrine’ to claim
jurisdiction over matters that have an effect, however distant in
their territory.
The use of extraterritorial jurisdiction has the potential to cause
international tension. The discord created is aptly illustrated by the
extraterritorial impact of US anti-competition legislation that
encompasses foreign cartels, formed in many cases with the
express approval of national governments of the corporations
concerned. These cartels have no direct connection with the USA,
but have been considered as indirectly connected, as their
existence and operation affect world prices and therefore affect the
USA. This was regarded by many in Europe as aggressive
promotion of the USA’s economic interests. The EU and European
states responded by enacting ‘blocking’ legislation.
Globalisation poses challenges to the effectiveness of territorially

based jurisdiction and states recognise that, on occasion, effective
regulation of activities within their territories demands a degree of
control over private activities beyond their borders. When used
cooperatively extraterritorial jurisdiction has the potential to fill
certain regulatory and accountability gaps. For instance, there is
growing acceptance of the need for an increased regulation of
transnational businesses. Extraterritoriality has been used for the
control of bribery; the US Foreign Corrupt Practices Act 1977 and
the UK Bribery Act 2010 both have extraterritorial reach. Its use
has been promulgated by John Ruggie, UN SRSG in the UN’s
‘Protect, Respect and Remedy’ Framework (UN, 2011) as a
means of increasing the accountability of MNCs for their activities
in the developing world.
States are also increasingly prepared to use extraterritorial
jurisdiction in relation to criminal activity which has international
reach, such as terrorism, money laundering, corruption, grave
human rights breaches and human trafficking.
In conclusion, the customary international law principles of

jurisdiction are complex and at times controversial in their
application, as they are evolving and adapting to a world where
individuals and corporations increasingly act and produce effects
across state borders.
Conclusion
In this course you have explored the concept of international legal
personality and the different subjects of international law. You
have considered how a state is created and recognised. You then
considered the implications of sovereignty and explored the
principles of jurisdiction and their application. In doing so, you will
have critically engaged with complex, current and emerging legal
and international issues.
Further reading
IBA (2008) Report of the Task Force on Extraterritorial Jurisdiction,
International Bar Association, Legal Practice Division.
Keep on learning

Study another free course

There are more than 800 courses on OpenLearn for you to choose
from on a range of subjects.
Find out more about all our free courses.

Take your studies further

Find out more about studying with The Open University by visiting
our online prospectus.
If you are new to university study, you may be interested in our

Access Courses or Certificates.

What’s new from OpenLearn?

Sign up to our newsletter or view a sample.

For reference, full URLs to pages listed above:
OpenLearn – www.open.edu/openlearn/free-courses
Visiting our online prospectus – www.open.ac.uk/courses
Access Courses – www.open.ac.uk/courses/do-it/access
Certificates – www.open.ac.uk/courses/certificates-he
Newsletter – www.open.edu/openlearn/about-openlearn/subscribe-the-
openlearn-newsletter
References
Badinter, R. (1991) ‘Opinion No. 1’, Arbitration Commission, EC
Conference on Yugoslavia, International Law Reports, vol. 92, pp.
162–6.

167–9.
Cassese, A. (2005) International Law, 2nd edn, Oxford, Oxford

University Press.
ECtHR (2012) The European Court of Human Rights in Facts and

Figures 2011, Strasbourg, European Court of Human Rights Public
Relations Unit; available via http://www.echr.coe.int/
Lauterpacht, H. (1978) Recognition in International Law, New York,

AMS Press.
Orentlicher, D.F. (2004) ‘Whose Justice? Reconciling Universal

Jurisdiction with Democratic Principles’,Georgetown Law Journal,
vol. 92, no. 6, pp. 1057–1134.
Pellet, A. (1992) ‘The Opinions of the Badinter Arbitration

Committee: A Second Breath for the Self-Determination of
Peoples’, European Journal of International Law, vol. 92, no. 1, pp.
178–85.
Rice, C. (2008) ‘U.S. Recognizes Kosovo as Independent State’,
Washington DC, U.S. Department of State[Online]. Available at
http://2001-2009.state.gov/secretary/rm/2008/02/100973.htm
(accessed 18 December 2012).
Türk, D. (1993) ‘Annex 1: Declaration on the "Guidelines on the

Recognition of New States in Eastern Europe and in the Soviet
Union"’ (16 December 1991), European Journal of International Law,
vol. 4, no. 1, p. 72.
UN (2011) Guiding Principles on Business and Human Rights:

Implementing the United Nations ‘Protect, Respect and Remedy’
Framework, United Nations Human Rights, Office of the High
Commissioner, HR/PUB/11/04, New York and Geneva, United
Nations.
Zartman, I.W. (ed.) (1995) Collapsed States: The Disintegration and

Restoration of Legitimate Authority, Boulder, CO, Lynne Rienner
Publishers.
Cases
UK
Trial of the Earl of Russell [1901] AC 446
DPP v Joyce [1946] AC 347.
Other jurisdictions
ICJ
Accordance with International Law of the Unilateral Declaration of

Independence in Respect of Kosovo (Request for an Advisory
Opinion) ICJ Rep 2010.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo

v Belgium) ICJ Rep 2002
Legality of the Use by a State of nuclear weapons in armed conflict

Advisory Opinion ICJ Rep 1996
Reparation for Injuries Suffered in the Service of the United Nations

Advisory Opinion ICJ Rep 1949
Western Sahara Advisory Opinion ICJ Rep 1975
PCIJ
Lotus (SS) Case (France v Turkey) PCIJ Rep Series A 1927, no. 10.
Legislation
UK
War Crimes Act 1991
Terrorism Act 2000
Bribery Act 2010.
USA
Foreign Corrupt Practices Act 1977.
Treaties and conventions
Sykes–Picot Agreement 1916
International Labour Organization Constitution 1919 (as amended)
Montevideo Convention on the Rights and Duties of States 1933
UN Charter 1945
UN Universal Declaration of Human Rights 1948
European Convention on Human Rights 1950
UN Declaration on the Granting of Independence to Colonial

Countries and Peoples 1960
UN International Covenant on Civil and Political Rights 1966
UN International Covenant on Economic, Social and Cultural

Rights 1966
UN Convention on the Law of the Sea 1982
UN Convention Against Torture and Other Cruel, Inhuman

Treatment or Punishment 1984
Oslo Accords 1993
UK/Netherlands Agreement 1999.

Resolutions
United Nations
UN Security Council
UNSC Res 1244 of 10 June 1999.
UN General Assembly
UNGA Res 1514(XV) of 14 December 1960
UNGA Res 2625 of 24 October 1970.
Acknowledgements
This course was written by Amanda Zambellas.
Except for third party materials and otherwise stated in the

acknowledgements section, this content is made available under a
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 Licence.
The material acknowledged below is Proprietary and used under

licence (not subject to Creative Commons Licence). Grateful
acknowledgement is made to the following sources for permission
to reproduce material in this course:
Images
Course image: Woody Hibbard in Flickr made available under

Creative Commons Attribution 2.0 Licence.
Figure 1: GPO U.S. Government Printing Office, www.gpo.gov
Figure 3: © Stringer/AFP/Getty Images.
Text
Activity 1: Courtesy of the International Court of Justice
Activity 4: Courtesy of the International Court of Justice
167–9.
ECtHR (2012) European Court of Human Rights in Facts and

Figures 2011, Strasbourg, European Court of Human Rights Public
Relations Unit; available via http://www.echr.coe.int/
Every effort has been made to contact copyright owners. If any

have been inadvertently overlooked, the publishers will be pleased
to make the necessary arrangements at the first opportunity.
Don't miss out:
If reading this text has inspired you to learn more, you may be
interested in joining the millions of people who discover our free
learning resources and qualifications by visiting The Open
University - www.open.edu/openlearn/free-courses
Activity 1
Comment
The ICJ confirmed that the UN is an international person. It had
been created with organs and given special tasks. Its members are
required to assist it in carrying out its tasks and to accept and carry
out the decisions of the UN Security Council. The UN General
Assembly is authorised to make recommendations to the members
and the organisation has been given legal capacity and privileges
and immunities in the territory of its members. It is party to various
conventions, distinct from its members to whom it has a duty to
remind of their obligations, if required.
The ICJ distinguished between the status of the UN and that of

states, but emphasised that the UN is a subject of international law
and is capable of possessing international rights and duties and
maintaining its rights by bringing international claims.
The UN was created with objective personality – it does not rely on

the recognition of states, and as such it is a subject of international
law even in respect of states that have come into existence after
its creation and also non-member states.
Back to Session 1 Activity 1
Activity 2
Comment
Article 3 states that the political existence of the state is
independent of recognition by the other states. Even before
recognition, the state has the right to defend its integrity and
independence, to provide for its conservation and prosperity, and
consequently to organise itself as it sees fit – to legislate upon its
interests, administer its services, and to define the jurisdiction and
competence of its courts.
Article 6 states that the recognition of a state merely signifies that

the state which recognises it accepts the personality of the other
with all the rights and duties determined by international law.
Recognition is unconditional and irrevocable.
Articles 3 and 6 indicate that statehood is a fact, irrespective of

whether a state is recognised. Recognition is the
acknowledgement or declaration of the existing legal capacity of
that state, rather than being a decisive factor in the creation of
statehood.
Activity 3
Comment
This Opinion has a particular application in that it relates to the
position of the Serbian minorities in Croatia and Bosnia–
Herzegovina. In this the Commission adopted a narrow view of the
right of self-determination; it relates to the right of groups to be
recognised within a state and the right of individuals to choose to
belong to that group. This includes, if appropriate, the right to
choose their nationality. In this more narrow form of self-
determination; minority groups have the right for their culture,
social organisation and religions to be respected by the state of
which they are a part.
On a broader level, the Badinter Commission accepted the right of

self-determination for the former territories of the federal state of
Yugoslavia, which fulfilled the traditional requirements of
statehood.
Activity 4
Comment
The ICJ considered that state practice did not indicate the
existence of a prohibition of declarations of independence. In the
latter part of the twentieth century the law of self-determination had
developed to recognise the right of independence of non-self-
governing territories and there were also instances of declarations
outside this context.
The ICJ rejected the argument that the prohibition of unilateral

declarations of independence is implicit in the principle of territorial
integrity enshrined in 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’, as the scope of the principle is limited to relations
between states.
The ICJ also rejected the argument that a general principle could
be derived from the condemnation by the UN Security Council of
other declarations of independence such as Southern Rhodesia
and Northern Cyprus. These determinations had been made in
response to a particular exceptional situation rather than because
of a violation of a norm of international law. In paragraph 84 the
ICJ stated that the Kosovo declaration of independence of 17
February 2008 did not violate international law.
The ICJ acknowledged the argument that the population of Kosovo

may be entitled to independence as the circumstances provided a
right to remedial secession but did not provide their opinion on the
matter as it was not part of the question asked of it.
Activity 5
Comment
In the judgment, the Permanent Court of International Justice
(PCIJ) states that the most important restriction imposed by
international law upon a state is that it must not exercise its power
in any form in the territory of another state unless there is a
permissive rule, deriving from custom or treaty, to the contrary.
This reflects the positivist approach to sovereignty; that is, that the
jurisdiction of a state within its territory is absolute. The state has
power over people, property and events within its territorial
boundaries.
The PCIJ then explains that there is no prohibition in international

law against states extending their jurisdiction to persons, property
and events taking place outside their territory, so long as it is not
limited by a contrary principle of international law.
At first sight these statements appear mutually exclusive. The

apparent contradiction in the Lotus judgment is resolved when you
consider that jurisdiction takes different forms and is subject to
customary international law principles which determine the extent
of a state’s jurisdiction in different circumstances.
Activity 6
Comment
The author reviews the increasing use of universal jurisdiction and
considers the concerns of those sceptics and positivists who
question whether foreign courts should be passing judgment on
crimes committed in another state as it risks increasing
international tensions and internal discontent. The author also
highlights the concerns of those who argue that universal
jurisdiction has the potential to cause diplomatic controversy as, by
indicting foreign officials, it in effect censures the behaviour of their
governments. She also considers the argument that, in exercising
universal jurisdiction the prosecutors and courts of the state
concerned lack democracy and accountability as they are not
accountable to the state of the indicted foreign official. Therefore,
the application of universal jurisdiction intrudes into the internal
governance of the foreign state. While not adopting these views as
her own, the author concedes that they highlight the paradox that
the application of universal jurisdiction is a means of enforcing
human rights laws but that international human rights laws also
uphold the right of societies to govern themselves.
The use of universal jurisdiction by states highlights the lack of

international judicial bodies with jurisdiction over the individual.
The Nuremberg, Tokyo and the Yugoslavian and Rwandan War
Crimes Tribunals are notable exceptions, but they are ad hoc
bodies, established to deal with events that occurred during
particular conflicts. Hence the significance of the creation of the
ICC in 2002 with general jurisdiction over individuals accused of
serious international crimes.
Figure 1 Yitzhak Rabin, prime

minister of Israel, shaking hands
with Yasser Arafat, PLO chairman,
after signing the Oslo Accords in
Washington, DC 1993
Description
Figure 1 is a colour photograph of Yitzhak Rabin, prime minister of Israel, on the
left, shaking hands with Yasser Arafat, PLO chairman, on the right, with President
Clinton behind both men. Taken at the signing of the Oslo Accords in Washington,
D.C
Back to Session 1 Figure 1
Figure 2 Trial of Radovan Karadžić –

as President of Republika Srpska he
sought unification with Serbia; he
was indicted for war crimes
committed against Bosnian
Muslims and Bosnian Croats during
the Siege of Sarajevo and ordering
the Srebrenica massacre
Description
Figure 2 is a colour photograph of Radovan Karadžić, the former
president of the Republika Srpska, speaking while sitting in behind
a microphone and computer screen in a courtroom at the
International Court of Justice in The Hague. Taken at his trial for
war crimes against Bosnian Muslims and Bosnian Croats during
the Siege of Sarajevo and the ordering of the Srebrenica massacre
Uncaptioned figure
Description
Figure 3 is a diagram showing four boxes. One is positioned
centrally at the top of the diagram, the other three are in a
horizontal line below it. For each of these three a one-way arrow
flows from the top box to them. The top box contains the text
‘jurisdiction’. The three lower boxes read ‘prescriptive jurisdiction’,
‘adjudicative jurisdiction’ and ‘enforcement jurisdiction’.

Exploring The Boundaries of International Law

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Exploring The Boundaries of International Law

Загружено:

Авторское право:

Доступные форматы

Exploring the boundaries of international law

Exploring the boundaries of

Page 2 of 76 22nd November 2018

About this free course

This free course is an adapted extract from the Open University

This version of the content may include video, images and

You can experience this free course as it was originally designed

Copyright © 2016 The Open University

Unless otherwise stated, this resource is released under the terms

Page 3 of 76 22nd November 2018

We believe the primary barrier to accessing high-quality

This is because the learning experience will always be the same

When using the content you must attribute us (The Open

The Acknowledgements section is used to list, amongst other

The Acknowledgements section is also used to bring to your

Page 4 of 76 22nd November 2018

We have also identified as Proprietary other material included in

Unauthorised use of any of the content may constitute a breach of

We reserve the right to alter, amend or bring to an end any terms

All rights falling outside the terms of the Creative Commons

Head of Intellectual Property, The Open University

Page 5 of 76 22nd November 2018

 1 Personality in international law

 1.2 Achieving legal personality

 1.3 International organisations

 2 The concept of a state

 2.2 The recognition of a state

 2.3 The effects of recognition

 2.5 ‘Failed’ states

 4.2 Types of jurisdiction

 4.3 Principles of jurisdiction

 4.4 Extraterritoriality – protective jurisdiction and the

Page 7 of 76 22nd November 2018

The course begins by considering how legal status is achieved in

This OpenLearn course is an adapted extract from the Open

Page 8 of 76 22nd November 2018

 understand the concept of international legal

Page 9 of 76 22nd November 2018

1 Personality in international law

1.1 Non-state actors

Page 10 of 76 22nd November 2018

John Ruggie, a Harvard professor, was appointed by the UN as

Only states have international capacity to the full degree. Other

The subjects of law in any legal system are not necessarily

1.2 Achieving legal personality

Page 11 of 76 22nd November 2018

View description - Figure 1 Yitzhak Rabin, prime minister of Israel,

1.3 International organisations

What conclusions did the ICJ come to on the question of whether

View comment - Activity 1

The UN has confirmed that other international organisations are

international organizations are subjects of international law which

Page 13 of 76 22nd November 2018

(Legality of the Use by a State of Nuclear Weapons in Armed Conflict

This case reveals that international organisations do not have

Page 14 of 76 22nd November 2018

On some occasions individuals may be able to institute criminal

Page 15 of 76 22nd November 2018

The War Crimes Act 1991 allows prosecution of a person who is

In practice, this type of remedy cannot be relied on by individuals

Some treaty regimes provide for an individual right to petition an

Examples of the right to petition international bodies

The European Convention on Human Rights (ECHR) 1950 permits