STUDY MATERIAL FOR INTRODUCTION TO

INTERNATIONAL LAW- L3301

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This study material is for academic purposes only to be used as a lecture and study guide for students at UNILUS
and not meant for publication. It contains materials from international and local renowned authors who have not
being acknowledged as per strict academic standard.
*Compiled by Gift Mileji LL.B ( UNZA) LL.M (Pretoria)

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ACKNOWLEDGEMENTS
May i take this opportunity to thank some people who helped put
the study material together. I thank my former students who took
time off their busy schedules to develop this study guide and
trying their best to make it student friendly. Victoria Mwamba,
Sichuunga Busiku and Lihonde Jonathan, I would like to once
again thank you for your efforts. All mistakes, errors and
omissions in this study material remain my sole responsibility.

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UNIT 1
THE NATURE AND HISTORY OF INTERNATIONAL LAW
Definition
International law (IL) may be defined as a body of rules and
principles which are binding upon states in their relation with
one another.2 The rules which make IL law can be divided into
general and particular rules.3 The rules of a particular nature
emanate from the free will of the states to create them and are
found in conventions or treaties. The latter set of rules making
IL can be discerned from usage or what is referred to as
customary practice. i.e. generally accepted as expressing
principles of law and established in order to regulate the
relations between states.

The significant element of IL from a strict point of view is

that it is to regulate the relations between states. Now IL has
evolved and included other players on the international scene.
Since 1949, it has been accepted that international
organizations, such as the United Nations (UN) and its
specialized agencies, enjoy international legal personality.
This new approach to international legal personalities at IL was
made by the International Court of Justice (ICJ) in the case of
Reparations for injuries suffered in the service of the UN when
it said that:4

“…is not the same thing as saying that it is a state, which it

certainly is not, or that its legal personality and rights and
duties are the same as those of a state. Still less is the same

2
JL Briely (The Law of Nature 6th Ed…) cited in John Dugard (3rd Ed..‘International Law; A South African
Perspective) (2005)1.
3
J Dugard (3rd EdInternational Law; A South African Perspective) (2005)1.
4
(1949) ICJ Report 174 at 179

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 thing as saying that it is „a super state‟…what it does mean is
that it is a subject of IL and capable of possessing
international rights and duties and that it has capacity to
maintain its rights by bringing international claims”

This statement was made by the ICJ in its advisory opinion in

response to a question whether the UN had the necessary legal
personality to bring an action against Israel for the death of a
UN mediator who was assassinated while on duty in Palestine.
Since then, many international treaties have developed to offer
IL protection to individuals. Although individuals benefit from
the protection of IL and participate in its process, they cannot
be described as full subjects of IL.5

Although entities other than states participate in the

contemporary international legal order, it is important to
understand that states and inter-governmental organizations are
the main actors on the international plane, the only entities
with true international personality and principle creators of
rules of IL.6

HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW

There are many people and groups who are associated with the
historical development of IL but for the purposes of this study
we shall focus on the contribution of the Greeks, the Romans and
a few selected writers.
- IL is still a youthful law which is as recent as the 16th
Century
- IL for a long time has been a Euro- Centric law which was
influenced by Christianity which came from the East.

5
Dugard (n 2 above) 1.
6
I Detter De PluisThe concept of International Law (1987) 130.

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 - There was an embryo of IL concepts that developed among the
Greeks and Romans.

The Greeks
- The Greeks had a system of city states i.e. Spartan
(greatest state)
- They used inter communal law to unify the cities or
statesi.e. there where Greek rules which formed part of the
inter-communal law and now find themselves to some extent
in the modern IL, e.g. if one brought a message from a
different state, you can reject the message but not kill
the messenger. The messengers were inviolable i.e. you
cannot harm or injure them
- The Greeks also came up with a rule that no city state
would go to war without declaring to the other state in
order to allow the others to prepare and even choose a
battle ground or arena and in the evening they would de-
rearrange and get the wounded and then reengage in the war
the next day

The Romans
- The Romans were war like people. They were able to conquer
other states or nations
- They introduced the concept of empire and believed that
there was only one universal state i.e. Roman Empire
- They also believed that there was only one law, which is
the Roman law and they enforced the Roman order i.e. the
Roman way of doing things
- The Romans were able to distinguish between three kinds of
laws, i.e. natural law, ius civile law and ius gentium law

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 - Natural Law being the law governs the universe and would
apply everywhere in the world e.g. the rising of the sun.
- Ius Civile was the law applicable in Rome for free citizens
of Rome
- Ius Gentium applied throughout the entire Roman Empire. It
governed the relations between the free citizens of Rome
and non- Roman citizens.
- The Romans also introduced two types of wars i.e.Bellum
Justum & Bellum Injustum
- Bellum justum was the just war and Bellum Injustum was the
unjust war
- If a war is just, then you have the right to engage in that
war but if it was unjust, you had no right to engage on
that war.

DEVELOPMENT OF INTERNATIONAL LAW BETWEEN 16TH & 17TH

CENTURY
- refer to the period of Renaissance or period of
enlightening from the period Europe believed in super
natural powers to advance the needs of man
- people believed that it was technology and not religion
which was going to develop Europe
- the expansion of ideas in the 16th and 17th Century led to
the collapse of religion and the Empires and led to the
establishment of secular states
- Westphalia is a critical point in history for it led to the
existence of states
- The emergence of state systems and challenges by people
like Martin Luther made the belief that the Pope was also a

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 human being and not a super natural person as earlier
believed
- Secular states became sovereign states and they came up
with acquisition laws of acquiring whatever land was newly
discovered (acquisition of territory laws emerged)
- The secular states also came up with rules to do with the
sea i.e. freedom of the sea and that you could not
appropriate the sea among themselves.
- Gentilis wrote a famous book entitled “De Jure Belli”
meaning „the law of war.‟ It discusses the justice and
injustice of waging a war and discusses warfare and
Victoria wrote a book known as “De Jure Belli Hispanorum.”
Both books describe the modern way of conducting war
- Grotius also referred to by many writers as the father of
IL turns out to be famous for he wrote a book entitled “De
Jure Belli ac Pacis.” He is acclaimed father of IL largely
in recognition of his monumental treatise De Jure Belli ac
Pacis Libris Tres.7
- Grotius also wrote “ Mare liberum” in 1609 which means
„freedom of the Sea‟
- It is from these ideas that the concepts of sovereignty,
freedom of the sea came up and are applicable to-date.
These are said to be European values or ideas and hence
referred to as Euro centric laws.

IL from 20th Century

The geography of IL had changed in the 20th Century. The Three
things which contributed to this change and still bear an
influence to modern IL include:
- advancement of science and technology

7
Dugard (n 2 above) 11.

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 - development of the first and second world war
- the third influence of modern IL is human rights law

IS INTERNATIONAL LAW TRUE LAW?

The debate as to whether international law is true law can be
traced back to a man called John Austin. John Austin among other
scholars stated that in order for international law to qualify
as law it must be a command by a political superior to an
inferior backed by sanctions. It was on this premise that he
argued that international law is not law since at international
level there exists no determined legislature capable of making
national laws. He therefore concluded that International law
cannot be considered true law but merely a code of rules of
conduct of moral force only. However, some scholars argue that
the behavior of states is sufficient evidence of the existence
of international law.

Arguments in favour of international law as Law

1. There is a body of rules and principles that comprise the
international legal order.
2. There is a community of more than 190 member states who
have formed the international community. Although there
may be serious political, economic and cultural divisions
within the community it is probably more no less divided
than many erogenous societies. i.e. communities‟ at
national level.
3. Members of the international community recognize these
rules as binding on them. Violations of international law
exist and comparison can be made to our national laws
which are sometimes broken but that does not any way
preclude the fact that they exist.

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 4. Sometimes countries expressly treat international law as
possessing the same force as ordinary law binding on its
citizens.
5. States like to be seen acting in accordance with
international law and legal advisors are employed to
defend a state‟s position in international law.

THE NATURAL LAW THEORY

The natural law theory believe that law was founded on the
nature of man as a reasonable being and was composed of a body
of rules which dictates to human reasoning. It is stated that
arising from this theory international law derives its binding
force by mere application to particular circumstances relating
to the law of nature. In other words, states submit to
international law because they are regulated by a higher law
that is the law of nature. Natural law or rather nature itself
demands that the law must be obeyed.

POSITIVISTS THEORY
This theory commands popular acceptance and holds that rules of
international law are in the final analysis of the same
character as (positive) municipal law. International law can in
logic be reduced to a system of rules depending on their
validity only on the fact that a state has consented to them.
The positivists regard international law as consisting of those
rules which the various states have willfully accepted. They
argue that without such manifestation of consent international
law would not be binding on the society of states.

The difficulty with this theory relates to rules of customary

law because it is difficult to find rules of express consent to

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be bound by customary law. It is however argued by proponents of
this theory that belonging to the society of states necessary
implies consent to the binding operation of establishing
customary rules of international law.

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UNIT2
SOURCES OF INTERNATIONAL LAW
Introduction
The source of law says what the law is and where it can be
found. The international community has agreed to a list of
sources listed in Article 38 of the statute of the ICJ for
ascertaining the content of International law.

The sources of IL to be applied by the Court are described in

article 38(1) of the statute of the ICJ are:
a) International conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b) International custom, as evidence of a general practice
accepted as law;
b) General principles of law recognized by civilized nations;
d) Subject to the provisions of Article 59 of the statute of
the ICJ judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.

Sources may be characterized as formal or material. Formal

sources constitute what the law is, whereas material sources
only identify where the law may be found. I.e. article 38(1) (a)
- (c) on treaties, custom and general principles are formal
sources. On the other hand, article 38 (1) (d) on Judicial
decisions and juristic teachings are material sources.

Article 38, however, does not in itself state that it is a

source of IL nor does it state that it is establishing a
hierarchy of these sources. Although no provision is made for a

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hierarchy of sources, in most instances treaties, which take the
place of legislation in domestic sphere, are viewed as the
primary source, while custom is the secondary source. The
normative superiority of these two sources, both of which are
founded on the consent of states, emphasizes the consensual
basis of IL. Modern IL has seen important development in the
hierarchy of norms. Whereas in classical IL, all norms and rules
enjoyed equal ranking, today, certain norms, known as peremptory
norms (jus cogens), enjoy a higher status in the normative
hierarchy.

Note: Treaties have been covered widely in Unit 3 of this module

A. TREATIES
Treaties inferred in article 38 may be between two states
(bilateral) or between several states (multilateral). Treaties
involve a contractual obligation for the parties concerned, and
thus create law for all parties agreeing to the terms contained
therein. On this premise, it can be said that a bilateral treaty
does not create a lesser law than does a multipartite treaty.
Multipartite treaties may have a wider effect, and as such may
be regarded as law making, in that not only do they have a
greater number of signatories, but its provisions may become
customary international Law.

In case of a dispute or any reason to find intention, treaties

are the most opportune way to obtain reliable evidence of
consensus of the parties. A treaty is direct proof of rights and
obligations accepted by parties to the treaty. It is therefore a
primary source for ascertaining the precise nature of just what
the participants have agreed to do or not to do.

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Regional or issue specific treaties are not intended to have
universal applicability. However they are useful sources of
international law when they contain rules intended to bind
certain nations.

Multilateral treaties may also provide evidence of international

consensus, even when they are not universally adopted. For
example, the United Nations Law of the Sea treaty which entered
into force in November, 1994, is the best evidence of the rights
and obligations of states that have accepted it when enough
states have ratified it. It is the best source for resolving
maritime issues between ratifying states. Such a treaty may also
bind non-parties as a matter of customary international law if
it codifies the general practice of many states.

B. International Custom
These are customs which have been practiced by states for a long
time and out of conviction and with a belief that if they do not
follow it, there would be a consequence. Customary IL is a
practice followed by concerned States because they feel legally
obliged to behave in such a way.

ELEMENTS OF INTERNATIONAL CUSTOM

Custom must be distinguished from mere usage, such as behaviour
which may be done out of courtesy. The elements of International
custom are basically two (2);
i) Material element (usage of practice must be general and
consistent)
ii) a psychological element ( the practice must be one that is
accepted as a compulsory rule i.e accepted as law “Opinio juris

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sive necessitatis” meaning „ the practice must be one that is
accepted as an accepted law‟)

Material element refers to the behaviour and practice of states

whereas the psychological element is the subjective conviction
held by states that the behaviour in question is compulsory and
not discretionary.

What makes state practice

Once the above elements are present, a custom becomes an
International Customary Law (ICL). There is no time limit on how
long the customary rule should exist. The fact that a practice
has been engaged in, only for a brief period of time will not in
itself be a bar to the formation of a customary rule, provided
the other requirements of custom are met. The virtual
unimportance of time in the formation of ICL was properly stated
in the North Sea Continental Shelf Case.5 In that case the court
said that:

"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…an indispensable requirement would
be that within the period in question, short though it might be,
state practice…should have been both extensive and virtually
uniform…"

The ICJ in the Asylum Case held that before state practice could
be acknowledged as law, it had to be in accordance with a
"constant and uniform usage" practiced by the state in
question.6

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There is no time limit for a rule to crystalise into a custom or
customary law. The practice need not be universal. A practice
can be general even if it is not universal. Article 38 (1) (b)
speaks not of universal practice but of a general practice. What
is more important than the number of states involved is the
attitude of those states whose interests are actually affected.
The number of states is less consequential than the identity of
the states involved because in every activity certain states
carry more weight than others. For instance, if one analysed the
rules of maritime, states to depend on mostly for the law of the
sea are those with a coastline and not looking at land locked
countries. Further, in matters involving law of outer space the
USA and Russia would be more important than other states that
have not shown interest or have no capacity to explore outer
space. One, therefore, does not consider the number of states
involved but generally looks at the general consistent practice
of certain states.

Regional Custom (The Asylum Case, ICJR 1950)

There are instances when regional custom used by a few nations
may differ from international customs practiced by many other
nations although both categories of custom may be binding. A
clear illustration is that although diplomatic asylum was not
recognized by customary practice elsewhere in the world, in the
Asylum case Columbia claimed that "American International Law"
required Peru to recognize Columbia's grant of asylum in the
Latin American region. The court rejected the existence of
either a universal or regional custom, which would have
recognized such asylum to be a binding practice. The court
maintained that there was too much fluctuation and discrepancy
in both the practice of and the views expressed regarding

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diplomatic asylum for a rule of custom to have been established.
The court found that it was difficult to find "any constant and
uniform usage accepted as law" from Peru‟s claim. The diverging
practice which existed in the region demonstrated to be a
hindrance for that particular practice to evolve into law.

This decision shows that the court implicitly approved the

potential application of regional practices where they could be
proved to exist.

Further, in the Asylum Case, case Peru alleged that the

Columbian Embassy improperly granted asylum to a Peruvian
national seeking to overthrow Peru‟s government. The ICJ
explored the possibility that there might be a regional custom,
as claimed by Columbia that would bind Peru to honour this
custom and allow the Peruvian to leave Peru without being
prosecuted.

"the party which relies on custom…must prove that this custom is

established in such a manner that it has become binding on the
other party and that (the claimed right of asylum)…is in
accordance with a constant and uniform usage, practiced by the
states in question, and that this usage is the expression of a
right appertaining to the state granting asylum and a duty to the
territorial state (Peru)."

Opinio Juris
A practice in itself does not establish custom. An alleged rule
of customary international law has to manifest not only a
material element, but a psychological element otherwise known as
opinio juris. If certain rules are to evolve into law, it is
necessary to distinguish rules which are regarded as legally

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obligatory from those which are not. State behavior on the
international scene may be prompted by reasons of courtesy,
convenience or tradition rather than legal obligation.

Opinio juris was introduced as a legal formula in an attempt to

distinguish legal rules from mere social usage, and it refers to
the subjective belief maintained by states that a particular
practice is legally required of them. A practice which is
generally followed but which states feel they are legally free
to disregard cannot be characterized as law. The issue of opinio
juris was discussed in the Military and paramilitary Activities
In and Against Nicaragua (Nicaragua V United States Case
(Merits) where the ICJ stated that:

"…not only must the acts concern amount to a settled practice,

but they must also be accompanied by the opinio juris…, Either
the state taking such action or other states in a position to
react to it must have behaved so that their conduct is evidence
of a belief that this practice is rendered obligatory by the
existence of n rule of law requiring it.”

Can a state oppose the rule of International customary law

(ICL)?
A state is free to oppose a rule of ICL but that opposition of
the state to that rule must be from the Inception of the rule,
then the state will not be bound. Opposition expressed after a
rule has become established will be too late to prevent the
state from being bound. In the Anglo-Norwegian Fisheries case,
the court held that if the particular rule in question was one
of international law, it would be "inapplicable as against
Norway insomuch as she has always opposed any attempt to apply
it to the Norwegian coast."

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What actions can constitute state practice to establish ICL
In his separate opinion in the Barcelona Traction, Light and
Power Company Case (second phase) Ammon J. stated that:

"To return to state practice as manifested within international

organizations and conferences, it cannot be denied, with regard
to the resolutions which emerge…that these amount to precedents
contributing to formation of custom."

Summary on sources of the rules of customary law

i. state practice. How does the state conduct itself in
relation to other states?
ii. Conduct of diplomat relations between states i.e diplomatic
correspondences, statement made by international advisers etc
iii. Treaties adopted. States who never adopted can accept the
treaty
iv. Practice of International organizations e.g UN, AU etc
v. Domestic law and domestic decisions of tribunals

Note: For state practice to amount to a custom, it must have

been "constant and uniform".

C. GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILISED

NATIONS
These are principles of law that are known and recognized and
already exist in municipal law of civilized nations. In the
Chorzow Factory Case 11 the Permanent Court of International
Justice described the principle "generally accepted in the
jurisprudence of international arbitration, as well as by
municipal courts" The principles are applied to certain

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geographical or ideological regions. An example of a principle
imported from the municipal law to the international sphere is
that the principle of estoppel in the Eastern Greenland Case
(1933).

In that case, the Minister of foreign affairs of Greenland had

made verbal representation that they had no opposition to the
claim to the land by another state. The minister then turned
round and denied this representation. The Court ruled that
having made the statement, he was estopped from reversing it.

General principles recognized in national law constitute a

reservoir of principles which an international judge is
authorized by Article 38 to apply in an international dispute,
if their application appears relevant and appropriate.

In the Barcelona Traction Case (second phase) 12, the ICJ

emphasized that:

"If the court were to decide the case in disregard of the

relevant institutions of municipal law it would without,
justification, invite serious legal difficulties. It would lose
touch with reality, for there are no corresponding institutions
of international law to which the court could resort ... It is to
rules generally accepted by municipal legal systems ... and not
to the municipal law of a particular state, that international
law refers."

There is no universally agreed upon definition of the exact

definition of general principles. Nonetheless, the importance of
these principles is that recourse to them has prevented a case
from being dropped on the grounds that international law as it

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exists lacks, or is inadequate for dealing with, the particular
issue raised.

D. JUDICIAL DECISIONS
Under Article 38(1) (d), judicial decisions are sources of law
subject to the provisions of Article 59. Art. 59 provides that
the "decision of the court has no binding force except as
between the parties and in respect of that particular case.”
„excoebuno‟ (parties could agree to what laws should apply to
them) if the parties so agree, the ICJ has no problem applying
the law chosen by the parties. The reason for this limitation is
simply to prevent legal principles accepted by the court in a
particular case from being binding on other states or in other
disputes.

The ICJ, however, is not bound by its previous decisions as to

the law which they apply. There is also no doctrine of „stare
decisis‟ on the international sphere with regard to
international tribunals. But despite this absence of a doctrine
of binding precedent, the ICJ has been seen to have reapplied
many principles relied on in previous cases. The ICJ seems to
lean towards following its previous decisions or feel the need
to distinguish its own jurisprudence.

E. SCHOLARLY WRITINGS
Scholars and academicians have contributed heavily to the
development of international law and their influence has been
due in part to the absence of a legislative body at the
international fora and on the youthfulness of the international
legal system itself. The writings were very important in the
earlier days of the development of IL because there was no much

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of International treaties, international organizations, customs
that were worldwide. Thus the authority of textbook writers was
very important. But over the years the importance has diminished
because of treaties and other available sources of IL. Today
authors are cited for purposes of substantiating arguments
because they contribute as a good source of evidence value.

F. Other sources
States are no longer the only actors at International level.
Political organisations too are actors, e.g the UN and other
International legal persons are also involved in creating norms.
Resolutions adopted by the UN might be resolutions adopted
internally by the UN and are binding on the UN itself because
they concern International business. However, there are other
resolutions that extend to parties that subscribe to the UN.
Such resolutions are in two parts i.e they could either be
binding or not binding.

Resolutions of the General Assembly i.e external resolutions are

not binding and certain UN General Assembly resolutions, namely
those which are "declarations of principle" although they carry
no legal obligation, do have considerable moral force and cannot
be dismissed as being of no legal significance. However,
resolutions of the UN Security Council are binding.

Although most of the resolutions are not binding, they

constitute soft law, “tertium quid.” Soft law could eventually
crystalise into hard law. Soft law is therefore very important
and may indicate a direction a state may take regarding a
particular issue.

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Jus Cogens
This is a technical term given to norms of general international
law which are of a peremptory force and from which no derogation
may be made except by another norm of equal weight. A treaty
which conflicts with such a norm is void, and should a new
peremptory norm develop, any existing conflicting treaty becomes
void and terminates.

The Vienna Convention on the law of treaties defines a

peremptory norm as one which is "accepted and recognized by the
international community of states as a whole." E.g there is no
single state that will proclaim and ask for war. Therefore, the
abolition of war/ use of force is a norm of jus cogens. Further,
no state can claim to have a policy of how to carry out genocide
and torture. The prohibition of genocide and torture is a norm
of jus cogens.

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UNIT 3
THE LAW OF TREATIES
Definition of a treaty
A Treaty is an international agreement entered into by two or
more states or other international legal person to establish or
seek to establish a relationship between parties governed by
international law.

This definition has three critical elements:

i. International Agreement
ii. Entered into by two or more international legal persons
intended to create a legal relationship
iii. Governed by international law
- This element brings out a distinction with international
contracts i.e the purchase of rice by Zambia from China.
Treaties must be distinguished from a commercial contract
between a state and an alien citizen or corporation.

Definition of the terms used in treaty law

Treaties go under a variety of names, thus besides the term
"Treaty" the following terms have been used, Convention
protocol, agreement, arrangement, process, verbal, statute,
convenant, declaration, modus Vivendi, exchange of notes or
letters, final act, or general act.

Agreement - instrument less formal than a treaty or convention

normally never in head of state form. This is generally used in
agreements of more limited scope and with fewer parties than the
ordinary convention. It is also employed in agreements of a
technical nature or administrative nature signed by
representatives of government departments.

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Arrangement - This term is used interchangeably with the term
agreement.

Convention - This term is ordinarily reserved for a proper

formal instrument of a multilateral character or law making
instruments or instrument adopted by organs of international
institutions e.g. ILO.

Covenant - used as synonym for treaty e.g. Covenant of the

League of Nations, sometime also called a "Pact."

Declaration - denotes a treaty proper such as declaration of

Paris of 1856 or recently the Joint Declaration of 19th December
1984 between UK and China on the reversion of Hong Kong to
Chinese sovereignty in 1997. This term is also used to mean an
informal instrument appended. A declaration can be an addition
or an elaboration or interpretation of a treaty.

Exchange of notes or letters is a method whereby states

subscribe to certain undertakings binding on them (especially
during negotiations)

Final act is an instrument which records the winding up of

proceeding of a treaty making conference

Modus Vivendi is an instrument recording an agreement of a

temporary or provisional nature intended to be replaced by a
more permanent arrangement. It is normally an informal agreement
that does not require ratification.
Protocol - This signifies an agreement less formal than a treaty
or convention which is generally never in the head of state
form. This term covers instruments:

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i) Subsidiary to a convention dealing with ancillary matters
such as the' interpretation of particular clauses of a
convention, any supplementary clauses not in the convention.
ii) A supplementary treaty concluded at a later date e.g.
Protocol of 1967 to the refugee convention of 1951 or the two
protocols to the ICCPR (Convention on Civil and political
rights).
iii) A record of certain understandings is also sometimes
called process verbal.
Process verbal - Originally denoted summary of proceedings of a
diplomatic conference but is now used as a record of some
agreement reached by the parties.

Statute - refers to a collection of constituent rules relating

to the functioning of an international institution such as the
statute of the ICJ.

TREATY MAKING PROCESS

The first thing to ascertain is the parties to the treaty. i.e.
do the parties have treaty making capacity. The capacity is that
of an international legal person. i.e Sovereign States and
International organisations.

Treaties can be concluded in different forms. For an

international organisation, the treaty can be concluded by the
relevant organ through the Executive Head. In case of states,
the Head of State is the primary person to conclude treaties and
other international agreements. Nevertheless, governments
through a minister/ senior government official can enter such
agreements and this will depend mostly on the weight of the
treaty in question. Mostly if it is issues of a high political

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nature, the treaty is concluded by the head of state and
ministerial treaties are generally of a technical nature.
(Municipal law of each country provides guidance on how to
conclude treaties). The form in which a treaty is made, however,
does not affect its binding nature.

PRACTICE IN THE TREATY MAKING PROCESS

There are various steps in the process of treaty making. These
are:
1) Accrediting of persons who conduct negotiations on behalf
of contracting states;
2) Negotiation and adoption;
3) Authentication, signature and exchange of instruments;
4) Ratification;
5) Accession and adhesion;
6) Entry into force;
7) Registration and publication; and
8) Application and enforcement

Accrediting of negotiators
Once an international legal person has decided to commence
negotiations with another for making a particular treaty, the
first step is to appoint negotiators. These representatives must
be properly accredited and equipped with the necessary authority
to undertake this mandate.

In practice representatives of a state are provided with a very

formal instrument given either by the head of state or minister
of foreign affairs showing the extent of their authority. The
credentials will show that Mr. „X‟ is a plenipotentiary
(legitimate representative) of the state and has FULL POWERS to

26
sign for the state. Such power is shown by an instrument called
pleni pouvour (Full powers)

However full powers are not necessary if.

i. according to the article 7(1)(b) of the Vienna Convention
on the Law of Treaties, it appears from practice of negotiating
states that their intention was to consider the person concerned
as representing the sending state and to dispense with full
powers.
ii. No full powers are issued for an agreement to be concluded
between departments of two governments.

When it is a bilateral treaty being negotiated, the

representatives exhibit their full powers when they meet to
start the negotiations or sometimes an actual exchange of these
documents is effected prior to the meeting for discussions.

In the case of a diplomatic conference summoned to conclude a

multilateral instrument a different procedure is used. At
beginning of a conference, a committee of full powers is
appointed to report generally to the conference on the nature of
the full powers which each representative possesses. Delegates
hand their full powers to the secretary of the committee of full
powers e.g. a delegate may have full powers to negotiate but not
to sign and therefore such a delegate will be not be expected to
act beyond their mandate of just negotiating.

27
Negotiation and Adoption
Negotiations involve two methods, either viva voce or by way of
exchange of written instruments. Usually in bilateral treaties
negotiations are conducted viva voce while in the case of
multilateral treaties negotiations are mostly through diplomatic
conferences.

The Vienna Convention in art. 9(2) provides that the adoption of

a treaty text at an international conference is to take place by
2/3 majority of states present and voting unless by the same
majority these states decide to apply a different rule. A treaty
is said to have been concluded at the time it is adopted. Once
adopted a treaty comes into being and only comes into effect
upon ratification.

AUTHENTICATION, signature and exchange of instruments

Before ratification, a treaty has to be signed by the state
parties available at the negotiation ceremony. Unless there is
an agreement to dispense with signature, this process is
essential because it serves to authenticate the text.

Art. 10 states that the text may be authenticated by such

procedure as is laid down in the treaty itself, or as is agreed
to by the negotiating states or in the absence of such agreed
procedure, by signature, signature ad referendum, initialing or
by incorporation in the final Act. The signature does not bind
the state but simply means an attestation by the negotiators
that the document is exactly what has been agreed upon. After
signing, an exchange of instruments occurs for the delegates to
take home for further action. i.e ratification

28
Ratification
A state is not bound by a treaty that it has not ratified. But
if a state has signed the treaty, it is expected not to do
anything that will defeat the purpose of such a treaty.
Ratification is defined in Art. 2 of the Convention to mean "the
international act whereby a state establishes on the
international plane its consent to be bound by a treaty".

Ratification is the final confirmation parties give a treaty

concluded by their legitimate representative. It also includes
the exchange of the document embodying that confirmation. The
ratifying document should clearly and unmistakably refer to the
treaty being ratified. Ratification does not have a
retrospective effect so as to make a treaty obligatory from the
time of signature.

There is no duty to ratify because power to refuse to ratify is

inherent in state sovereignty. Thus at international law there
is no legal or moral duty to ratify.

An instrument of ratification has no effect unless it is

deposited or exchanged as the case may be. In bilateral treaties
instruments of ratification are exchanged between states while
in multilateral treaties exchange is not appropriate, so such
treaties provide for deposit of all ratifications in a central
place, for example, foreign office of place where treaty was
signed or the UN secretariat.

29
Accession and Adhesion
When a state has not signed a treaty it can only adhere or
accede to it. i.e where a state did not participate in the
negotiation and adoption process of the treaty in question.
Some writers make a distinction between the two:
Accession - being party to the whole treaty except reservations.
Adhesion – merely means approval of parts of the treaty.

Entry into force

Entry into force of a treaty may either be provided for in the
treaty itself or the parties may agree as to when it will enter
into force. It may be on signature or on exchange or deposit of
ratifications, acceptance or approval by all states signatories.
Multilateral treaties usually make entry into force dependant on
deposit of a prescribed number of ratifications. Sometimes a
precise date is fixed for entry into force irrespective of how
many states have ratified.

Registration and publication

Art. 102 of the UN charter requires all treaties and
international agreements entered into by UN members to "as soon
as possible" be registered with the Secretary General of the UN
and be published by the UN. An unregistered treaty cannot be
relied upon in proceedings before the ICJ, GA or Security
Council.

This however does not invalidate a treaty and does not prevent
it being invoked before bodies and courts other than UN organs.

30
Note that:
1) In the interim period before registration such a treaty can
be relied upon before the ICJ, the GA, and the SC subject to
undertaking to register.
2) Failure to register as soon as possible can be cured by
subsequent registration.
3) Can UN Secretary General refuse to register? His duties are
ministerial and must register but a document that seems not to
be an international treaty or agreement ought to be refused
registration.

Application and Enforcement

The final stage of treaty making process is the actual
incorporation, where necessary, of treaty provisions in the
municipal law of the state parties and application of its
provisions.

Structure of a treaty or convention

i. Preamble
Comprises of the names of the Heads of the contracting parties
and their duly authorised representative. It also recites the
motives for the conclusion of the treaty;
ii. Substantive clauses
After the preamble follows the principle provisions numbered in
articles.
iii. Formal clauses
Contains miscellaneous provisions i.e duration, ratification,
amendments, dispute clauses etc and
iv. Formal attestation or acknowledgement of signature and
Signatures by the plenipotentiaries.

31
Validity of treaties
Articles 46-53 of the Vienna Convention
A treaty being invalid suggests a legal still birth due to the
following reasons:
i. Non-compliance with municipal law requirements-
A state may not plead a breach of its constitutional provisions
relating to treaty making so as to invalidate an agreement (art.
46).
ii. Error
Error may only be invoked if the error relates to a fact or
situation which was assumed by that state to exist at the time
when the treaty was concluded and formed an essential basis of
its consent to be bound by the treaty (art 48(2)). A state which
contributed by its behaviour to the error, or should have known
of a possible error, cannot relieve itself subsequently of its
treaty obligation art 48.
iii. Specific restrictions on authority to express the consent
of a state
If the authority of a representative to express the consent of a
state to be bound by a particular treaty has been made subject
to a specific restriction, his omission to observe that
restriction may not invoked for invalidating the consent
expressed by him unless the restriction was notified to the
other negotiating states prior to his expressing such consent
art 47.
iv. Fraud
Art. 49 provides that a treaty may be invalidated U if a state
has been induced to conclude a treaty by the fraudulent conduct
of another negotiating state.

32
 v. Corruption of a representative of a state
Art. 50 provides that a treaty may be invalidated if a state's
consent to a treaty "has been procured through the corruption of
its representative directly or indirectly by another negotiating
state". Neither fraudulent conduct nor corruption are defined in
the treaty.
vi. Coercion of a state by threat or use of force
Art 52 a treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles of
international law embodied in the charter of the United Nations.
vii. Coercion of a representative of a state
Under Article 51 a treaty will have no legal effect if a state's
consent is procured by the coercion of its representatives
through acts or threats against them.
viii. Treaties conflicting with a peremptory norm of general
international law (jus cogens)
Article 53 - a treaty which conflicts with a peremptory rule of
international law or jus cogens becomes void and terminates

Note: Art. 64 - if a new peremptory norm of general

international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates.

THE PERFORMANCE OF TREATIES

1. pacta sunt servanda
Every treaty in force is binding upon the parties to it and must
be performed in good faith. Articles 26
2. Treaties have no retrospective effect
It binds the state from the moment if signifies consent to the
treaty unless the treaty itself has a provision for
retrospective effect. Article 28

33
 3. Territorial application
Unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in
respect of its entire territory. Article 29
4. Only a force majeure (act of God) can exculpate a state
from a liability from a treaty
5. Third parties (states)
Treaties are not applicable to third states because of the
doctrine of sovereignty of states. However, this is just a
general rule because there are certain instances when third
states agree to be bound. Moreover, some treaties may bind third
states without their consent i.e Jus Cogens treaties - UN
Charter. Exceptions to this general rule can be found in
articles 35- 38 of the Vienna Convention on the Law of Treaties:
which are;
A. an obligation arise for a third state from a provision of a
treaty if the parties to the treaty intend the provision to
be the means of establishing the obligation and the third
state expressly accepts that obligation in writing,
A. a right arises for a third state from a provision of a
treaty if the parties to the treaty intend the provision to
accord that right either to the third state, or to a group
of states to which it belongs, or to all states, and the
third state assents thereto. Its assent shall be presumed
so long as the country is not indicated, unless the treaty
otherwise provides,
B. When an obligation has arisen for a third state as a
customary rule of international law recognized as such.

34
INTERPRETATION OF TREATIES
There are 3 main approaches in IL to treaty interpretation:
1. The objective approach which looks at the ordinary words of
the treaty
2. The subjective approach which is an interpretation in
accordance with the intention of the parties to the treaty
3. The teleological approach which is an interpretation in
accordance with the treaty‟s aims and objectives.

The Vienna Convention on the law of treaties adopts an

integrated approach which reflects all the three approaches. The
Convention articulates the integrated approach as a general rule
of interpretation and invokes the teleological approach as an
aid to interpretation in order to shed more light on the
ordinary meaning of the words in a treaty. In terms of article
31 of the Vienna Convention, if particular words and phrases in
a treaty are doubtful, they should be interpreted by reference
to the object, purpose and context of the treaty. Context
includes the text of the treaty, the preamble, annexes etc. It
is permissible to look at documents that where there before the
treaty was made e.g documents used prior and during the
„negotiation and adoption‟ process.

The modern trend in treaty making is to attach a dictionary to

help in the interpretation of a treaty or including a provision
which refers the interpretation to a specialised organization.

35
Treaty modification
A treaty is always valid at inception but it can be modified,
suspended and in certain extreme cases terminated. For effective
modification, a reservation may be entered or an amendment can
be made to a treaty.

Reservations
A reservation is a unilateral statement, however phrased or
named, made by a state, when signing, ratifying, accepting,
approving or acceding to a treaty, where it purports to exclude
or to modify the legal effect of certain provisions of the
treaty in their application to that state.

The privilege of making reservations is regarded as an incident

of sovereignty and perfect equality of states. Reservations may
be made even where there are no provisions in the treaty
expressly permitting such. A practice has developed where a
special clause in a treaty provides that no reservations would
be permissible in the treaty in question or that no reservations
are permissible with regard to certain important provisions or
that only certain kind of reservations are permissible.

Reservations only apply in the case of multilateral treaties. In

bilateral treaties a reservation by one party effectively means
a new proposal which will reopen negotiations until agreed terms
are reached and inserted into the final treaty text.

Article 19 provides that "a state may when signing, ratifying,

accepting, approving, or acceding to a treaty formulate a
reservation unless:
• The reservation is prohibited by the treaty;

36
• b) The treaty provides that only specified reservations,
which do not
• include the reservation in question, may be made; or
• In cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the object and purpose of the
treaty.

Historically, it was thought that a reservation could only be

accepted if all parties to the treaty consented. Thus in the
absence of unanimous agreement any reservation would be null and
void.

Effect of a reservation
The ICJ in the Advisory opinion on Reservations to the
Convention on Genocide 1948 case discussed the issue of
reservations to treaties.

The court stated that:

- A state that has made and maintained 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; otherwise that state
cannot be regarded as being a party to the convention.
- That if a party to the convention objects to a reservation
which it considers to be incompatible with the object and
purpose of the convention, it can in fact consider that the
reserving state is not a party to the convention.
- That if, on the other hand, a party accepts the reservation
as being compatible with the object and purpose of the

37
convention, it can in fact consider that the reserving state is
a party to the convention.
- That an objection to a reservation made by a signatory
state which has not yet ratified the convention can have legal
effect indicated in (a) above only upon ratification. Until such
moment it merely serves as a notice to the other states of the
eventual attitude of the signatory state.
- That an objection to a reservation made by a state which is
entitled to sign
or accede but which has not yet done so, is without legal
effect.

With regard to multilateral treaties, questions that have become

more important as the size of the international community has
increased are whether a reservation has to be accepted by all of
the parties to be valid and if not what is the treaty
relationship between a party that makes a reservation and one
that objects to it.

Amendment and modification

Amendments provide state parties with an opportunity to move
treaties with time. A treaty must have an amendment clause which
should provide for such a procedure i.e a number of states
needed to carry forward an amendment. The procedure must provide
for the initiation and adoption of the amendment. After
amendment, the treaty must be ratified by the member states and
it would come into effect once the minimum required have
ratified.

38
A treaty may be amended by agreement between the parties unless
the treaty otherwise provides in accordance with the rule in
arts. 40,and 41 i.e. proposal to amend to be notified to all
parties, each one of which shall have the right to take part in
formulating amendment proposal, in negotiations and conclusion
of any agreement for the amendment of the treaty.

Termination of, suspension of and withdrawal from

treaties (articles 54-62)
i) In accordance with the treaty or otherwise by consent -
termination of a treaty or withdrawal of a party may take place
in conformity with the provisions of the treaty or at any time
by consent of the parties
ii) Material breach – a material breach of a bilateral treaty
by one of the parties entities the other to invoke the breach as
a ground for terminating the treaty or suspending its operation
in whole or in part
• Supervening impossibility of performance – a party may
invoke the impossibility of performance of a treaty as ground
for terminating or withdrawing from it if the impossibility
results from the permanent disappearance or destruction of an
object indispensable for the execution of the treaty
• Fundamental change of circumstances (rebus sic stantibus)
“things remaining as they are – Article 62 provides that:

“Fundamental change of circumstances which was not foreseen by

the parties may not be invoked as a ground for terminating or
withdrawing from the treaty unless the existence of those
circumstances constituted an essential basis of the consent; and
the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty”.

39
Rebus sic stantibus may not be invoked in respect of treaties
establishing boundaries or by a state that has caused the
fundamental change.

Suspension
The suspension maybe with regard to all the parties or only to a
particular party. It must be in conformity with the provisions
of the treaty and may take place at any time following the
consent of all parties after consultation or through a
conclusion of a subsequent treaty if this be the intention of
the parties.

A party may withdraw from a treaty by consent of the other

parties. For a party to withdraw from a treaty, it does so by a
notice of termination or denunciation.

Note: The word „state‟ is used to mean an international legal

person i.e use includes international organisations.

40
UNIT FOUR
INTERNATIONAL LAW AND MUNICIPAL LAW
It is a state's perception of international law that determines
the way in which international law becomes part of municipal
law. In other words, states differ in the way that their
municipal courts are either required or allowed to give effect
to international obligations.

DIFFERENCE BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW

THEORIES ON MUNICIPAL LAW v INTERNATIONAL LAW
MONISTIC THEORY
This theory recognizes a unitary system of law and sees all law,
as an integral part on the same system. Proponents of this
theory believe that international law is inherently interwoven
into the legal system of every nation. In the event of conflict
between the two, most monists would argue that international law
should prevail. Exponents of this theory maintain that
international law and municipal law far from being essentially
different must be regarded as manifestations of a single
conception of law. Consequently monists argue that municipal
courts are obliged to apply rules of international law directly
without the need for any act of adoption by the courts or
transformation by the legislature. For them international law is
incorporated into municipal law without any act of adoption or
transformation. Hence the fact that the monist position is often
described as lending support to a doctrine of incorporation.

DUALISTIC THEORY
This theory rejects the monistic view and perceives
international law and national law as being distinct legal

41
orders. Supporters of this theory express the view that
international law regulates the relations of sovereign states
while municipal law regulates affairs internal to the state such
as, relations between state and its citizens and the relations
of individual citizens vis-a-vis each other. Accordingly
dualists hold that the two systems are mutually exclusive and
can have no contact with and no effect on each other.
Dualists, see international law and municipal law as completely
different systems of law, with the result that international law
may be applied by domestic courts only if adopted by such courts
or transformed into local law by legislation. Lauterpacht
portrays the dualist position as follows:

„according to the dualist view, international law and municipal

law differ so radically in the matter of subjects of the law, its
sources and its substances, that a rule of international law can
never per se become part of the law of the land. It must be made
so by the express or implied authority of the state. Thus
conceived, the dualist view is merely a manifestation of the
traditional positivist attitude.‟

While maintaining that international law is not foreign law,

monists have been compelled to accept that the whole body of
international law binding on a state cannot be directly applied
by municipal courts. This had led to the emergence of the
harmonization theory which qualifies the absolute monist
position by acknowledging that in cases of conflict between
international law and municipal law the judge must apply his own
jurisdictional rules. This means that customary international
law is to be applied directly as part of common law, but that
conflicting statutory rules and acts of state may prevail over

42
international law. In this way harmony is achieved between
international law and municipal law.

Dualism therefore does not admit that a conflict can arise

between the international legal system and a municipal legal
system. For this reason, the question of supremacy is not one
addressed by dualists.

MUNICIPAL LAW IN INTERNATIONAL LAW

On the international scene, international law is undoubtedly
supreme as is borne out by both arbitral and judicial decisions
and international conventions.

In the Alabama Claims Arbitration, the arbitration tribunal

concluded that neither municipal legislative provisions nor the
absence of them could be pleaded as a defence for non-compliance
with international obligations.

The Permanent Court of International Justice in an advisory

opinion in The Exchange of Greek and Turkish population case
held that:
"-a state which has contracted valid international obligations is
bound to make in its legislation such modifications as may be
necessary to ensure the fulfillment of the obligation
undertaken".

Similarly, Article 27 of the Vienna Convention on the law of

treaties stipulates that "a party may not invoke the provisions
of internal law as justification for its failure to perform a
treaty obligation" nor may a state under Art.46 of the same
Convention, "invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its

43
internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest..
... " In short a state cannot seek to evade fulfilling an
international obligation because of either the presence or
absence of an internal legislative provision.

INTERNATIONAL LAW BEFORE MUNICIPAL COURTS

United Kingdom Practice
Lord Alverstone in the West Rand Central Gold Mining Co. Case 16
deals with international law in British courts in the following
words:

It is quite true that whatever has received the common consent

of civilized nations must have received the ascent of our
country, and that to which we have assented along with other
nations in general may properly be called international law, and
as such will be acknowledged and applied by our municipal
tribunals when legitimate occasion arises for those tribunals to
decide questions to which doctrines of international law may be
relevant."

Any rule of customary international law which is inconsistent

with a British statute will not be enforced in British courts.

A treaty does not become part of British domestic law unless and
until it is specifically incorporated as such by a legislative
measure, namely, an enabling Act. An enabling Act is required
because Treaty making power is considered to be an executive
function in which the legislature does not participate and its
consent is not required before Britain can undertake

44
international obligations. An enabling Act is therefore a
safeguard against the possible abuse of executive authority.

In practice, the enabling Act giving internal effect to a treaty

will be passed before the treaty is ratified and the opportunity
will then be taken to bring municipal law in accordance with
international law.

In a practice known as Ponsonby Rule, a treaty following

signature is laid for 21 days before both Houses before
ratification. In the event of a conflict between a domestic
statute and a treaty, the domestic legislative measure will
prevail.

United States Practice

The USA adopts a similar attitude to that adopted by the United
Kingdom.

However, with respect to customary international law, the USA is

monistic, and in respect of treaties it is dualistic. In this
respect, judicial decisions confirm that customary international
law is part of USA law.

Marshall C.J. declared in the Nercidee case that, in the absence

of an Act of Congress, the court was bound by the law of
nations, which was part of the law of the land.

What is the internal status of international law in the USA?

45
Customary international law is accepted as federal law and its
determination by the federal courts is binding on the state
courts.

Under the American Constitution, The President has "power by and

with the advice and consent of Senate, to make treaties,
provided two thirds of the Senators present concur"18.

Unlike in Britain, the American legislature participates in

treaty making. The President has power to make a treaty, but he
may only ratify it after the Senate has given its advice and
approval. "All treaties made or which shall be made under the
authority of the US shall be the supreme law of the land".

Under Article 6 of US Constitution treaties are placed on equal

footing with statutes so that in the event of a conflict between
a treaty and subsequent statute, the latter prevails. However,
there is a presumption that Congress does not intend to infringe
international law.

Self-executing treaties are automatically part of American law

and therefore no implementing legislation is required. On the
other hand, non-self-executing treaties are not incorporated in
domestic law until the necessary enabling legislation has been
passed.

The Zambian Practice

The power to "negotiate and sign international agreements and
delegate the power to do so" is vested in the President.
(Article 44(2)(d) of the Constitution. For this reason, Zambia

46
adopts the same stance as the UK. Customary international law is
regarded as part of Zambian law.

In relation to treaties, Zambia adopts a dualist approach so

that treaties become part of the law upon an enabling Act being
passed by parliament. See for example, the Diplomatic Immunities
and privileges Act which is an Act to give effect to the Vienna
Convention on Diplomatic Relations. Another example is the
Bretton Woods Agreement Act, CAP. 367 which makes provision for
the acceptance by Zambia of the agreements for the establishment
and operation of the IMF and IBRD.

47
UNIT FIVE
PERSONALITY, STATEHOOD AND RECOGNITION
TOPIC ONE: PERSONALITY (SUBJECTS OF INTERNATIONAL LAW)
INTRODUCTION
The actors at the international community are distinct from
those at municipal community. The principle actors on the
international scene are state and international organizations
and to some extent individuals. The possession of international
personality means that an entity is a subject of international
law and is “capable of possessing international rights and
duties, and has the capacity to maintain its rights by brining
international claims.”8[refer to Unit One for International legal
persons]

Like discussed in Unit One above, states were once considered

the only subjects of international law although as international
law developed and expanded in scope, new entities have been
admitted as "actors" on the international scene. These new
actors include international organisations and to some extent
individuals. The personality enjoyed by such actors, however,
varies considerably. The reasoning that states were the
exclusive subjects of IL was that „the law of nations‟ was
earlier understood „to be based on the common consent of
individual States, and not of any other actors.‟

Unit one has also discussed that the scope of international

legal personality has widened considerably due to the
proliferation of international organizations and development of
international awareness on human rights. Some writers argue that
„whilst states possess full international legal personality as

8
Reparations for injuries suffered in the service of the United Nations, ICJ Reports (1949) at 174

48
an inherent attribute of their statehood, all other entities
possessing personality do so only to the extent that states
allow them.‟ Their personality is derived via the state. The
personality of states is original and that of other entities
derivative.

The State as an international legal person

The attributes of a state according to Article 1 of the
Montevideo Convention of 1933, on Rights and Duties of States9
provides the criteria of the statehood. According to the
Convention, a state as a person at international law should
have; a) a permanent population b) a defined territory c)
government and d) capacity to enter into relations with other
states. Similarly, the Arbitration Commission of the European
Conference on Yugoslavia in Opinion No. 1 declared that “ the
State is commonly defined as a community which consists of a
territory and a population subject to an organised political
authority” and that “such a State is characterized by
sovereignty”10

In international law, therefore, there are four qualifications

which a state as a person of international law should possess.
These are:

(a) A permanent population;

(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with other states.

9
The 1933 convention was adopted by the seventh international conference of American states
10
M.N. Shaw, International Law (6thed., Cambridge University Press, Cambridge 2008)p.198

49
Permanent population
States are aggregates of individuals and accordingly a permanent
population is a prerequisite of statehood. The population should
not be nomadic although this does not entail a static
population. The absence of part of the population over a period
of time does not vitiate state status.

There is no minimum population required before an entity can

qualify to be called a state. It is argued that the population
should consist of nationals, inhabitants and natives.

There are two types of population. i.e. homogeneous and/or

heterogeneous. A homogenous population is one where a people
share a common culture, language, history/heritage and a multi-
national or poly-ethnic population is a heterogeneous.

Defined territory
Territory is where the permanent population live on. However,
there is not a necessity of having well- established boundaries
as the international Court of Justice said in the North Sea
Continental Shelf cases, “... there is... no rule that the land
frontiers of a state must be fully delimited and defined.”11The
requirements of territory may be satisfied even if the entity's
territorial boundaries are not precisely defined or are to some
extent in dispute, for example Israel in 1948.

However, while territory is necessary, there is no prescribed

minimal geographical size.
There are three things to territory i.e.
- The link between the state and territory

11

50
 - The judicial nature of territory
- And there cannot be a state population without territory
 There can be no state without territory because the
territory is a spatial area within which the state
effectively and exclusively exercises its power for
the accomplishment of its duties.
 Territory as a judicial nature can be conceived as a
subject or an object. If u say the territory is an
subject, then the territory is a constituent part of
the state i.e the very essence of the state. If you
say the territory is an object, it means the territory
is a mere property over which the state exercises its
proprietary rights.
 Territory circumscribes the boundary which the state
operates
 In international law, the importance of „territory‟ is
the „state territory‟, which constitutes of the land,
the airspace, internal waters and the territorial sea.

A government
Statehood must be evidenced by the establishment of an effective
government i.e. one independent from any other authority and one
that enjoys legislative and administrative competence. A State
requires a government that functions as a political body within
the law of the land. An established state's statehood is not
nullified if it has no effective government for a period of time
say due to a civil strife as is the case in Somalia which has
had no function government since 1991.

51
Capacity to enter into international relations
Although this condition is an important indicator of statehood,
its realization depends on how other actors on the international
scene relate to a state in question. Fulfillment of this
criteria depends on recognition by other states. In other words,
an entity may have the capacity to enter into foreign relations,
but should other states decline to enter into relations with it,
the entity in question is denied the opportunity to demonstrate
this capacity in practice.

INTERNATIONAL ORGANIZATIONS AS INTERNATIONAL LEGAL

PERSONS
An international organization, for the purposes of international
law, is an entity established by agreement and which has states
as its principal members. An international organization has
legal capacity under international law if it satisfies three
essential elements.

i. It must be a permanent association of state members with

established objectives and administrative organs.
ii. Must possess some power that is distinct from the sovereign
power of its state members.
- For example, Interpol operates on an international level
that allows its agents to track and arrest international
fugitives. However Interpol agents cannot act without the
express consent of the national policy of any state where
it maintains its presence. Because of this an institution
like Interpol cannot be considered as a public
international organization and therefore has no
international legal personality. Not all international

52
 organizations are public, thus fail to become subject of
IL.

iii. The association's powers, must be exercisable on an

international level rather than solely under the national legal
systems of its member states.

For an analysis of the capacity of international organizations

in international law as actors see the Reparation for Injuries
Suffered in the Service of the UN Case also referred to in Unit
one.

INDIVIDUALS AS INTERNATIONAL LEGAL PERSONS

Individuals, unlike states have limited international legal
personality, although international law currently increasingly
recognizes that an individual may possess both international
rights and duties. The development of the sense of awareness of
human rights in the recent years has promoted the guarantee of
human rights for individuals at national and international
sphere. This has also increasingly contributed to the
recognition that individuals may be held responsible for certain
conduct affecting the development of and implementation of IL.

The Nuremberg Tribunal contributed to shade light on the earlier

argument that individuals do not participate on the
international scene and thus could not be held responsible for
their acts. This argument was found to be false.

The Nuremberg Tribunal held that:

"Crimes against international law are committed by men, not
abstract entities, and only by punishing individuals who

53
 commit such crimes can the provisions of international law
be enforced."

The decision of the Nuremberg Tribunal has contributed greatly

to the inclusion of individuals to become subjects of IL. The
perpetrators of international crimes have been tried and
punished and victims of such crimes compensated. A number of
international tribunals to try individuals for international
crimes have been created and examples include the following:

i. The International Tribunal for the Prosecution of Persons

Responsible for Serious Violations of International Humanitarian
Law committed in the territory of the former Yugoslavia (the
ICTY); and

ii. The International Tribunal for the Prosecution of Persons

Responsible for Genocide and Other Serious violations of
international humanitarian law committed in the territory of
Rwanda and Rwandan citizens responsible for genocide and other
such violations committed in the territory of neighbouring
states between January 1, 1994 and December 31, 1994 (ICTR).

Other examples in which individuals have been prosecuted or held

responsible for crimes against international law include the
Pinochet case and the Lockerbie incident. Other acts which are
now recognised as giving rise to individual responsibility at an
international level include, inter alia, hijacking, sabotage,
terrorism, drug trafficking and acts upon diplomats.

Although individuals are now beneficiaries of IL, states remain

the main actors to provide for these benefits. The states put in
place procedures and rules on how an individual can fully

54
benefit from IL. The states, thus, can use these procedures in
IL to make individuals not to fully realise the benefits
available on the international sphere. Some treaties provide
that individuals can petition a state if there rights are
violated by such a state. This, however, can be defeated by a
state‟s reluctance to ratify such treaties especially that most
of such provisions are in optional Protocols.

Another hindrance to the realisation of IL benefits for

individuals is that currently Individuals do not enjoy locus
standi before the international court of justice (ICJ).

OTHER INTERNATIONAL LEGAL PERSONS

The Holy See is another example of an entity that possesses
limited international personality. The Holy See has a
population that is neither permanent nor indigenous, and its
function is exclusively religious. It is however a party to
international treaties and it has a permanent observer mission
at the UN.

The Holy See is an anomaly on the international scene enjoying

and exercising international personality, because other
international actors are willing to enter into international
relations with it.

55
TOPIC TWO
RECOGNITION OF STATES AND GOVERNMENTS
States as subjects of international law are not static. While
some states get created, like the creation of South Sudan in
July 2011, other existing ones may become extinct, for example,
the dissolution of the socialist Federal Republic of Yugoslavia
in 1991/92. The governments of these states are also not static.
There are different governments which come to power in most
states at different times. For a state to participate on the
international scene there is need to be recognised by other
states.

Recognition symbolises a willingness on the part of the

recognizing state to enter into relations with the state that is
being recognized. Recognition gives the state being recognised
locus standi on the international fora and also in the national
legal systems of the recognising states.

Recognition of a state is mostly influenced by a number of

factors such as the policy of the recognizing state conditioned
principally by the necessity of protecting its own interests,
which lie in maintaining proper relations with any new state or
new government that is likely to be stable and permanent. When
granting or withholding recognition, states are influenced more
by political, economic and other considerations than legal
considerations although their acts have legal consequences.
Recognition, therefore, means a willingness to deal with the new
state as a member of the international community. States are
therefore, under no obligation/legal duty to recognise a new
state or government. It is a matter of policy in which the
recognizing state has discretion and cannot be compelled to

56
recognise an entity. i.e. an entity cannot demand recognition as
a matter of right.

There is a difference between recognition of a state and

recognition of a government. Recognition of a state is the
formal acknowledgement by another state that the recognized
state possesses the attributes of statehood and signifies a
willingness to treat the entity as a state. Recognition of a
government is the formal acknowledgement by the recognized state
that the regime in question is the effective government and
signifies a willingness to treat that regime as such. There is a
possibility for an entity to be recognized as a state, but its
governmental regime not to be accorded recognition.

Recognition of a government
With regard to recognition of governments, the question of
recognition does not arise when a government comes to power by
constitutional means. It only arises if a government comes to
power by unconstitutional means. Most scholars argue that that
recognition should be withheld if the entity had come to power
through a violation of international Law such as the use of
force i.e. when the regime in question has come to power by
unconstitutional methods like in a coup d'etat.

The general practice is that when a state recognises a

government, it issues a declaration to that effect. In modern
day practice, recognising governments do not issue open
declarations but simply imply recognition by way of their
conduct.

57
The criterion for recognition of governments is effectiveness
and stability of the entity being recognised as government.
Where the government regime appears effective and stable, then
recognition will be accorded. In this context, "Effective"
refers to the physical control of the territory seeking
recognition. i.e. does the regime enjoy control over most of the
state's territory and is that control likely to continue or is
it temporal? Where the responses to the first two questions are
in affirmative, this will entail that the control as effective.
With regard to a stable government, "Stable," refers to the
regime's likelihood of continuing in power.

Refusal to accord recognition to a particular governmental

regime, however, does not negate its state's statehood.

For further reading on recognition of governments, refer to the

practice by the United Kingdom and United States of America.

Recognition of a state
THEORIES ON RECOGNITION OF STATES
There are two theories to recognition of a state, the
constitutive and the declaratory theory. The question therefore
is that “is it the fact of recognition that brings about a state
into existence or does recognition merely confirm an already
existing state of affairs?”

THE CONSTITUTIVE THEORY

This is also known as the attributive theory. Proponents of this
theory argue that it is the act of recognition which establishes
or constitutes the international personality of a state.
Constitutive means a state does not exist until it is recognised

58
by others as being a state. The act of recognition is regarded
as a precondition to the entity's legal status or that it is the
act of recognition which creates a state and determines the
legal personality or status of a new governmental regime.

The constitutive theory however raises two problems which are

still being debated in International Law. Firstly, is whether
unrecognized states are free to act as they wish on the
international scene unfettered by the obligations which
international law imposes seeing that they are not considered as
subjects of IL? And secondly what is the position at
International Law for a state that is recognized by some states
and not by others?

Existing states do treat unrecognized entities as having no

obligations under international law. They are not free to act as
they wish on the international scene. [Provide practical
examples]

DECLARATORY THEORY
The Declaratory or Confirmatory theory states that a state
exists if it satisfies the requisite criteria of statehood and
whether or not the entity is recognised does not change anything
because a state is already in existence. Recognition is just
evidence of an already existing state and not a material for
creating a non-existent entity.

Where a state is recognised, the recognition is retroactive i.e

it goes back to the inception of the state. For example, the
British accorded recognition to the post- revolution regime in

59
the then Soviet Union in 1921, but when recognition was granted
it was backdated to 1917.

Luther Co v James Sagor & Co (1921) 1KB

The court of first instance refused to give effect to the soviet
confiscation decree as the soviet regime had not been recognised
by the British government. However, by the time the case was
heard on appeal the British government had accorded de facto
recognition to the soviet regime. ”The government of this
country recognised the soviet government as the government in
possession of the powers of sovereignty in Russia, the acts of
the government must be treated by the courts of this country
with all the respect due to the acts of a duly recognised
foreign sovereign state.
See also Bank of Ethiopia V National Bank of Egypt

When is an entity recognised as a state

By and large, an entity is accorded recognition if it satisfies
the requirements of statehood which are:
(a) Defined territory
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with other states.

Recognition De Jure and De Facto

The practice of most states draws a distinction between
recognition de jure and de facto. Recognition de jure means that
according to the recognosing state, the state or government
recognised „formally‟ fulfills the requirements laid down by
international law for effective participation in the
international community. Recogntion de facto means that in the

60
opinion of the recognising state, there is a provisionally and
temporarily state or government and with due reservation for the
future, the state or government recognised fulfills the
requirements to be identified as such an entity in fact (de
facto). i.e. if the government was recognized as the de facto
government, it implied that the government had effective control
and that control appeared to be permanent, that is there was
likelihood that the regime would be a permanent one. On the
other hand if a government was recognized as de jure, it means
that such government had met all the requirements of an
effective government are firmly established as discussed above.

Representatives of states recognised de facto are not entitled

to diplomatic privileges and immunities. Only the de jure
recognised state can represent a state for purposes of
succession or espouse the claims of a national for any
international act done by the recognising state.

Haile Selassie V Cable wireless Co.

On 9th May 1936, Italy proclaimed the annexation of Ethiopia
following a war of conquest. Prior to this the plaintiff through
an agent had made a contract with the defendants and in 1937 he
commenced proceedings to recover money due under the contract.
Bennett J at first instance held that the plaintiff who was
still recognised as de jure sovereign of Ethiopia by the United
Kingdom had not been divested of the right to sue for the debt
in spite of the fact that the British government recognised
Italian government as the government de facto of virtually the
whole of Ethiopia. The defendant relied inter alia on Luther v
Sagor to establish the exclusive power to the de facto
government. Bennett J distinguished that decision confining it
to acts of the de facto government in in relation to persons or

61
property in the territory which is recognised as governing in
fact. The present case was concerned with acts in relation to
persons or property in Ethiopia but with a debt an action
recoverable in England. While an appeal by the defendant was
pending the British government recognised the king of Italy as a
de facto sovereign occurred in December 1936. Thus when the
action commenced the debt which was part of public property of
the state of Absyssinia vested in the king of Italy and the
appeal was allowed

Implied and express recognition

Recognition may be express or implied. In the absence of an
express formal declaration of recognition, the establishment of
diplomatic relations between a state and the entity concerned
will be taken to be recognition. Participation in a multilateral
treaty with an entity does not entail its recognition by all the
parties to such a treaty. It is possible for parties to be
signatories to a multipartite treaty, even though one party does
not recognize the other party.

Conditional Recognition
Conditional recognition means to recognise an entity as a State
only when it fulfills some conditions. It was first seen in the
Berlin Congress of 1878, Great Britain, France, Italy and
Germany marked the recognition of Bulgaria, Serbia, Romania and
Montenegro with the condition that these countries would not
impose any religious disabilities on any of their subjects. It
may cause some political problems but the non-observance of the
condition would not invalidate the recognition since the law
does not attach value to any condition unless it depends upon
agreements made by the particular parties.

62
Collective Recognition
In 1971 the International Law Commission stated that collective
recognition means that States act collectively during the
process of receiving information of the situation, evaluating
that information and reaching a decision, and communicating that
decision. This may be seen as a result of increased corporation
between the States. The idea of act collectively has been a
subject of a debate since the foundation of the League of
Nations and the establishment of the United Nations. However,
the States preferred to keep the control of recognition in their
authorised bodies. As Shaw stated “The most that could be said
is that membership of the United Nations constitutes powerful
evidence of statehood.”

Withdrawal of Recognition
Sometimes it is possible to withdrawn a granted recognition.
Especially, it is easier for the de facto recognition since the
position is different with the de facto recognition which
includes an ambiguity for the future of the entity. If the
government of the entity loses the effective control on its
territory there will be no ground for recognition and it may be
taken back. On the other hand de jure recognition is more
difficult to withdraw because as mentioned above it is stronger
than de facto recognition. De jure recognition may be the case
only if the State is annexed or conquered by another State.

Effects of recognition in municipal law

1. Only a recognized state or government has locus standi in
the UK courts and it can accordingly raise an action in the

63
UK courts Gur Corporation v Trust Bank of Africa Ltd the
plaintiff Panamanian company contracted with the Republic of
Ciskei to build a hospital and two schools. As the contract
required, the plaintiffs obtained a guarantee from the defendant
bank in favour of the Ciskei Department of Public Works to cover
the costs of remedying any building defects.in these
proceedings, the plaintiff sought to recover a sum paid by them
to the defendants as security for the guarantee. The defendants
joined the Republic of Ciskei as the third party and the
Republic of Ciskei brought a counterclaim for the money paid as
security. Thereupon, Steyn J. raised the preliminary question
whether the Republic of Ciskei had locus standi to sue and be
sued in the English courts. In the light of two Foreign Office
certificates, Steyn J. held that it did not. The court of Appeal
reversed his decision on the ground that the Ciskei Government
was acting as a delegate of the de jure sovereign South Africa.

2. Only a recognized state or government (or its agents), may

plead immunity from suit. It cannot be sued without its consent.
In Duff Development Co v Kelantan Government The respondents
pleaded sovereign immunity in an action brought by the appellant
who contended that the appellant was not an independent state
and by agreeing to arbitration it had waived its immunity and
thus amenable to the court‟s jurisdiction. The court went along
with the foreign office statement recognizing Kelantan as an
independent state. On the waiver of immunity by the Kelantan
government the court observed that even if the sovereign had
agreed to submit to the jurisdiction but refuses to do so later
when the question arises, that would not make him amenable to
the jurisdiction of the court.

64
3. Only the legislative, executive or judicial acts of a
recognized state or government will be given legal effect within
the United Kingdom in Luther v sagor the court of first instance
refused to give effect to a Soviet confiscation decree, as the
soviet regime had not been recognized by the British Government.
However, by the time the case was heard on appeal, the British
Government had accorded de facto recognition to the soviet
regime “the Government of this country … recognized the soviet
government as the Government in possession of the powers of
sovereignty in Russia, the acts of this Government must be
treated by the courts of this country with all the respect due
to the accts of a duly recognized foreign sovereign state”

4. it will be entitled to possession in the recognising state

of property belonging to its predecessor.

5. Recognition once granted is retroactive. It is back dated

to the establishment of the entity in question it does not
relate to the time recognition is accorded Luther v Sagor
established that recognition once given, was retroactive in
effect from the time that the recognized government established
itself.

On the other hand the practice followed by the Anglo-American

courts has established that recognition entitles a recognized
entity to
1. Sue and be sued in the courts of law of the recognizing
state and courts will give effect to its past and present
legislative and administrative acts.

2. Claim sovereign immunity from legal action for its

diplomatic representatives and public property.

65
3. Demand and receive possession of public property belonging
to the recognized state.

The effects of non-recognition both at international level and

national level is that a state cannot enter into legal relations
with other states.

Test yourself: with the aid of suitable examples, explain the

effect of recognition and non-recognition in municipal law and
on the international scene.

66
UNIT SIX
STATE JURISDICTION AND SOVEREIGNTY
INTRODUCTION
Jurisdiction is an attribute of state sovereignty. A state‟s
jurisdiction refers to the competence of the state to govern
persons and property and situations by its municipal law whether
criminal or civil and is clearly conceded by international law
to all members of the society of states.12 The competence that a
state has embraces judicial, legislative and administrative
competence. Simply put, it refers to a state‟s jurisdiction,
power or authority to make laws, to adjudicate on them and to
enforce the law. Thus, in the case Compania Naviera Vascongado v
Cristina,13Lord Macmillan explained the principle of territorial
jurisdiction in the following words:

“It is an essential attribute of the sovereignty of this realm

as of all sovereign independent states, that it should possess
jurisdiction over all persons and things within its territorial
limits and all cases, civil or criminal, arising within these
limits”

By and large states have jurisdiction on persons or things

actually in the territory of that state and under its
sovereignty and, therefore, it can be stated that the
territorial basis of jurisdiction is the normal working rule.14As
such, territory one of the attributes of statehood defines the
extent of a state‟s jurisdiction. But, there are exceptions,
for example there will be persons within a state‟s territory who

12
Wallace(International Law 6th Ed..) p120. Starke (n 9 above) 202
13
(1938) AC 485 at 496-7.
14
Starke (n 19 above) 202.

67
will be immune from the jurisdiction of that state whilst there
are also occasions when a state can exercise jurisdiction
outside its own territory. The Permanent Court of Justice in
the Lotus Case15 confirmed this:

“A state may not exercise its power in any form in the

territory of another state. In this sense jurisdiction is
certainly territorial; it cannot be exercised by a state outside
its territorial boundaries except by virtue of a permissive rule
derived from international custom or from a convention”

STATE TERRITORY
State territory in terms of international law can be defined
with two elements in mind. i.e. (i.) the composition and extent
of the territory (ii.) the legal nature of the authority of the
state over this territory.

i. Composition and extent of the territory

There is general agreement that state territory comprises all
land area, including subterranean area, waters including
national rivers, lakes and territorial sea and the airspace over
the land and territorial sea. The consequence as will be seen
later is that the state exercises its jurisdiction on its
territory (within its boundaries) which extends from the center
of the earth up to the heavens.

Some writers argue that the idea of territory includes „things‟

which are located outside the territory of the state and which
fall within the jurisdiction of the state. These include ships
on the high seas, aircraft in flight and the premises of

15
(1927) P.C.I.J. Rep. Ser.A, No.10.

68
diplomatic representatives abroad. But these should be
considered as exceptions, reflecting the extension of the
jurisdiction of the state and not as a form of expanded state
territory.

Territory is thus a tangible attribute of statehood within which

a state enjoys and exercises sovereignty.16State delimitation is
important to define a state‟s sovereignty. Territorial
sovereignty may be defined as the right to exercise therein, to
the exclusion of any other state, the functions of a state.

(ii.) The legal nature of the authority of the state over this
territory.
The scope of a state should be territorial implying that
it must only exercise jurisdiction within its territory where
its interests are. Therefore there should be a sufficient link
between the state and the territory in order for it to exercise
its authority. However, the further concept of extra
territoriality has been developed where a state can exercise
jurisdiction which is not exclusively territorial.

CATEGORIES OF JURISDICTION
1. International and National Jurisdiction
2. Civil and Criminal Jurisdiction

As stated earlier jurisdiction refers to the exercise of

competence (power) and this exercise of power arises in two
categories. The problem arises with regard to criminal
jurisdiction especially where a state is involved. The rule is

69
that when a national of a foreign state has been injured by
another state that injury is felt by the state where the
national comes from. Reference can be made to state
responsibility, diplomatic protection and treatment of aliens.
Civil law on the other hand, is there to provide the court with
means of dealing with issues such as divorce cases, cases
involving contracts between private individuals and not
contemptuous matters arising between states.

International jurisdiction with reference to international

competence over subjects of international law on the
international plane arises through treaties that states agree to
be governed by certain authority. For example, the jurisdiction
of the African Court on Human and People‟s Rights, the
jurisdiction of the International Court of Justice in cases
where disputes have arisen etc. Whilst national jurisdiction is
in three forms: prescriptive, enforcement and adjudicative
jurisdiction. Prescriptive jurisdiction entails the ability of a
state to create laws which prescribes the behaviour of the
people within a state. Enforcement jurisdiction refers to a
state‟s jurisdiction to compel and punish non-compliance through
the courts and other relevant institutions and adjudicative
jurisdiction refers to a state‟s authority to preside over
matters by way of the courts and administrative tribunals.

The commentary by the Harvard Research Draft Convention on

jurisdiction with respect to crime 1934 identified five general
principles upon which states have jurisdiction. These are:

(a) territorial principle;

1. Subjective
2. Objective

70
 3. “Effects” Doctrine
(b) Nationality principle
(c) Protective (or security) principle;
(d) Universality principle; and
(e) Passive personality principle.

TERRITORIAL PRINCIPLE
A state may assert its jurisdiction over all criminal acts that
occur within its territory and over all persons responsible for
such criminal acts, whatever their nationality. Events occurring
within a state's territorial boundaries and persons within that
territory even though their presence is temporary are subject to
the application of local law. The principle that the courts of a
place where the crime is committed may exercise jurisdiction has
received universal recognition.
An offence may not, however, be entirely committed within the
territory of one state. A crime may be commenced in one state
and consummated in another. In this case the subjective and
objective principles come into play. The subjective territorial
principle allows the exercise of jurisdiction in the state where
a crime is commenced and completed in another state while the
Objective territorial principle gives jurisdiction to the state
in which the crime has been completed and has effect though
commenced in another state. A classical illustration is where
person stands near to the border between two countries and fires
a gun and thereby injures a person on the other side, which
state has jurisdiction? The answer is both. The state from which
the gun was fired has jurisdiction under the subjective
territorial principle, whilst the state where the injury was
sustained has jurisdiction under the objective territorial
principle.

71
Both states may claim jurisdiction and both may do so
legitimately. The one which will actually exercise jurisdiction
will most probably be the one which has custody of the alleged
offender.

Effects Doctrine
The effects doctrine is simply an extension of the objective
territorial principle. According to this doctrine states can
claim jurisdiction over acts committed abroad which produce
harmful effects within the territory. This was the basis upon
which Turkey exercised jurisdiction in the Lotus case. The
effect of collision was felt on the Turkish ship, which the
court held to be assimilated to Turkish territory. Although this
is a necessary extension of the territoriality principle it may
lend itself to abuse as illustrated by the manner in which the
United States has sought to implement its anti-trust
legislation.
See: US v Aluminum Co. of America.
Woodpulp case (1989)
Ablstrong v Commission of the European Community
Gencor v Commission of the European Community

NATIONALITY PRINCIPLE
Jurisdiction exercised on this principle relates to the
nationality of the offender. A state may exercise jurisdiction
over any of its nationals wherever they may be and in respect of
offences committed abroad. Although universally acknowledged as
a basis of jurisdiction, it is utilized more extensively by
civil law countries than common law countries. Common law
countries restrict jurisdiction exercised on the nationality

72
principle to more serious offences committed under the official
Secrets Act. In the case of the United States, treason, drug
trafficking and crimes by or against the armed forces attract
jurisdiction under this principle. In the case of Zambia, crimes
prescribed in the Money Laundering Act attract jurisdiction
under this principle.

PROTECTIVE (SECURITY) PRINCIPLE

On the basis of this principle, a state exercises jurisdiction
in respect of offences which, although occurring abroad and
committed by non-nationals, are regarded as injurious to the
state's security. Although acknowledged as a justification for
the exercise of jurisdiction, it remains ill defined - and
undoubtedly open to abuse if “security” or “vital interests “are
given a broad interpretation.

However, the justification lies in the need to protect a state

from the prejudicial activities of an alien when such activities
are not, for example, unlawful in the country in which they are
being carried out.

Example of when a state can claim jurisdiction on this principle

would be in respect of plans to overthrow its government.

This principle was invoked by Israel along the universality

principle in the case against Eichman (see below).

UNIVERSALITY PRINCIPLE
This principle gives jurisdiction to a state in respect of
international crimes, that is, offences which are prohibited by
international law and the international community as a whole.

73
The idea of a universal crime over which all states could
exercise jurisdiction, regardless of the alleged offender's
nationality, evolved with piracy. Under customary international
law, the crime of piracy has long been recognized as one over
which all states could exercise jurisdiction, provided that the
alleged offender was apprehended either on the high seas or
within the territory of the state exercising jurisdiction. The
arresting state may also legitimately punish pirates.

This rule of customary international law is reaffirmed in

Article 19 of the 1958 Geneva Convention on the High seas and
Article 105 of the 1982 Convention on the Law of the sea.

Piracy for purposes of international law, is essentially any

illegal act of violence or depredation which is committed for
private ends on the high seas.

War crimes and genocide are now widely accepted as being

susceptible to universal jurisdiction.

In the Eichman case Israel successfully (at least in an Israel

court) claimed jurisdiction on two cumulative grounds:

"a universal source (pertaining to the whole of mankind) which

vests the right to prosecute and punish crimes of this order in
every state within the family of nations; and a specific or
national source, which gives the victim nation the right to try
any who assault its existence."

The charter of the Nuremberg Military Tribunal, in particular

Article 6, which referred to crimes against peace, violations of

74
the law and customs of war, and crimes against humanity and for
which was to be individual responsibility, and the judgment of
the tribunal are now accepted as international law.

Genocide has been widely condemned and the 1948 Convention on

the Prevention and Punishment of the crime of Genocide which
prohibits the commission of Genocide is now recognized as Jus
cogen to which no state is allowed to derogate.
See: Pinochet case.

The 1948 Convention provides for trial to be either in the

territorial state or by an international panel or tribunal, but
a state which encourages, practices or fails to punish genocide
would today be guilty of having contravened customary
international law of fundamental nature.

Significant steps were made in the 1990s towards the creation of

a permanent international criminal court with enforcement
jurisdiction over individuals for a number of crimes against
humanity. Simultaneously to these efforts was the establishment
in 1993 and 1994 by the UN of the International Tribunal for the
Prosecution of Persons responsible for Genocide and other
serious violations of International Humanitarian Law in the
Territory of Rwanda and Rwandan citizens Responsible for
Genocide and other such violations committed in the Territory of
Neighboring States between January 1, 1994 and December 31, 1994
(I.C.T.R).

Belgium has become the first country to turn the principle of

universal jurisdiction into reality. On June 8, 2001, four
defendants were convicted in a Belgian court of international
crimes arising from the Rwandan Genocide.

75
PASSIVE PERSONALITY PRINCIPLE
The link between the state exercising jurisdiction and the
offence is the nationality of victim. A state may exercise
jurisdiction over an alien in respect of an act which has taken
place outside its boundaries, but against one of its nationals.
This principle is not widely accepted. However, this principle
has been recognized in the Tokyo Convention on offences Aboard
Aircraft and of the 1984 Convention against Torture and other
cruel, inhuman or Degrading Treatment or Punishment.

Apparently, the current position of the United States is that,

although the principle is not generally accepted for ordinary
torts or crimes, it is increasing accepted as applied to
terrorists and other organized attacks on a state‟s nationals by
reason of their nationality, or to assassination of a state‟s
diplomatic representative or other official.

In this regard the USA passed a law authorising the use of force
against those responsible for the attacks launched against the
United States on September 11, 2001. This authorised the US to
exercise its rights of self-defence to protect US citizens both
at home and abroad.

PROBLEMS OF JURISDICTION WITH REGARD TO AIRCRAFT

Airspace
Every state enjoys exclusive sovereignty over the airspace above
its territory to a height once thought to be indeterminable. In
the wake of outer-space exploration, it is now recognized that
there is an upward limit to airspace, but what that limit is has
not yet been established.

76
State sovereignty over airspace quickly became customary
international law in the early part of the 21st century and was
crystallized in the 1919 by the Paris Convention on the
Regulation of Aerial Navigation and the 1944. The Chicago
Convention, which entered into force in 1947, replaced the Paris
Convention of 1919; The Chicago convention which recognized the
exclusive sovereignty of all states over their airspace,
regardless of whether or not they are contracting parties to the
convention defines Aircraft as "aircraft used in military,
customs and police services". Such aircraft requires
authorization by special agreement.

The primary stipulation of the Convention is that contained in

Article 6, namely that the scheduled international aircraft of a
contracting state, have that state's permission and comply with
any conditions of the said authorization.

International law does not give a right of innocent passage

through airspace, and entry into a state's airspace requires the
permission of the host state.

Modern air law is largely governed by a number of conventions

adopted in Chicago in 1944. The Chicago convention on
International civil Aviation, lays down the following guideline
principle:
1. „every state has complete and exclusive sovereignty‟
over the airspace above its land area and territorial
waters
2. No aircraft on a scheduled flight, i.e. one that
operates according to a published timetable, may overfly
another sates‟ territory without special permission.

77
 3. Aircraft not engaged in scheduled international air
services may overfly or land in the territory of another
state without permission, subject to the right of the
state flown over to require landing, and subject further
to the right of the state, for reasons of safety, to
require aircraft flying over regions which are
inaccessible or without adequate air navigation
facilities, to follow prescribed routes or obtain
special permission. If such a non-scheduled flight is
engaged in the carriage of passengers, cargo, or mail
for reward, the territory state may impose such
conditions as it considers desirable.
4. Aircraft have the nationality of the state in which they
are registered.

Two other treaties were adopted in Chicago in 1944. The

International Air Services Transit Agreement, generally known as
the Two Freedoms Agreement‟, grants scheduled flights of
contracting states (1) the privilege to fly across the territory
of another contracting state without landing and (2) the
privilege to land for non-traffic purposes (for refueling and
repairs).

The International Air Transport agreement or „Five Freedoms

Agreement‟ seeks to add a further Three freedoms for scheduled
flights to those contained in the Two Freedoms‟ Agreement,
namely; (3) the privilege to put down passengers, mail, and
cargo taken on in the territory of those whose nationality the
aircraft possesses; (4) the privilege to take on passengers,
mail, and cargo destined for the territory of that state; and
(5) the privilege to take on passengers, mail, and cargo
destined for the territory of any other contracting state and

78
the privilege to put down passengers, mail, and cargo coming
from any such territory. The Five Freedoms Agreement‟ has not
been widely ratified and is of little importance today.

In the absence of an accepted multilateral treaty governing

scheduled flights it has been left to states to enter into
bilateral treaties providing for the reciprocal operation of
scheduled services. Such bilateral agreements will usually
designate a particular airline as the instrument of the state,
and determine specific points of departure and arrival, routes,
frequency of service, seating, freight carrying, and tariffs.
The regulation of air traffic by bilateral agreement contrasts
with the law of the sea, which is regulated by multilateral
treaty. The impossible of examining a multitude of bilateral
treaties explains why general international-law treaties devote
less attention to the law of the air than to the law of the law
of the sea.

Civil aviation is regulated by two international bodies. The

International Civil Aviation Organization (ICAO) is United
Nations specialized agency with headquarters in Montreal, which
promotes technical and administrative co-operation in the field
of civil aviation, including the adoption of safety standards.
The International Air Transport Association (IATA) is a non-
government organization comprising most of the airlines and is
principally engaged in the setting of fares and tariffs.

In Welkom Municipality v Masureik and Herman t/a Lotus

Corporation, the Supreme Court of Appeal held that despite the
fact that the Chicago Convention on International Civil Aviation
of 1944 had been incorporated into municipal law by s 1 of the
Aviation Amendment Act 42 of 1947 (and now the Aviation Act74 of

79
1962), recommendations made pursuant to the Convention by
International Civil Aviation Organization (ICAO, of which South
Africa is a member „are not automatically, and without it more,
invested with the status of a municipal law binding upon the
citizenry of South Africa. The court added that [a]part from the
fact that they are no more than recommendations, the Convention
itself does not impose upon parties to it an absolute obligation
to implement them. Moreover, the Aviation Act 74 of 1962 makes
it clear that international aviation standards recommended by
ICAO requires legislative incorporation. Consequently the court
upheld an appeal against a judgment holding that the appellant,
Welkom Aerodrome, was negligent by reason of its failure to
comply with ICAO recommendations on the width of runways of an
airport.

The Warsaw Convention for the Unification of Certain Rules

relating to International Carriage by Air of 1929 and its
Protocols lay down uniform rules governing the liability of the
carrier where damage is sustained to passengers, baggage and
goods during international carriage. Its provisions fall largely
within the field of private international law and fall outside
the scope of this study. The Warsaw convention and its protocols
are incorporated into South Africa law by the Carriage by Air
Act.

Jurisdiction over offences committed on board aircraft in flight

Under Articles 17 and 18 of the Chicago Convention, an aircraft
possesses the nationality of the state in which it is registered
and it can only be validly registered in one state. For
jurisdictional purposes, it is the state of registration which
is competent to exercise jurisdiction over offences and acts
committed on board.

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The first international attempt to deal with the issue of
offences committed on board aircraft was made by the Tokyo
convention on offences and certain other Acts Committed on Board
Aircraft of the 14th September 1963. The objectives of that
convention included;

• To ensure that persons committing crimes aboard aircraft in

flight or on the surface of high seas were not allowed to go
unpunished because no country would assume jurisdiction to
apprehend and punish them.
• For protection and disciplinary purposes, to give special
authority and power to aircraft captain, members of crew and
even passengers.

This convention excludes military, police and aircraft used for

customs purposes.

In normal circumstances, the subject state would exercise

jurisdiction over offences committed in its airspace. However,
in most cases an over flying aircraft may not be forced to land
with a result that the subjacent state is deprived of an
opportunity to take action. To address this problem, the
convention provided that:
(i) The country of registration of aircraft is competent
to exercise jurisdiction (Article 3);
(ii) Offences committed on aircraft are for purposes of
extradition to be treated as if they had occurred also in the
territory of the country of registration;
(iii) The Captain of an aircraft can disembark a
passenger 'and hand him/her over to police of a country party to
the convention. ,

81
The issue of hijacking of aircraft is dealt with by the Hague
Convention for the suppression of Unlawful seizure of Aircraft
of 1970. This Convention obliges member countries to provide
heavy penalties to persons hijacking aircraft". The Convention
also obliges member countries to take measures to establish
jurisdiction over offences of violence on aircraft "in flight."
An aircraft is considered to be "in flight" from the moment when
all its external doors are closed following embarkation until
the moment any such door is opened for disembarkation.

The Convention applies only to offences committed on aircraft

registered in the contracting state; when hijacked aircraft
lands in a contracting state; and when the offence committed is
on an aircraft leased without crew to a lessee who has his
principal place of business in the contracting state or is a
permanent resident in such a country.

The Hague Convention is supplemented by the Convention for the

Suppression of Unlawful acts the Safety of Civil Aviation. This
convention was to cover unlawful acts other than hijacking such
as bombing of aircraft (Article 1). Since such acts could
affect other aircraft other than those “in flight”, the
convention introduced the concept of “aircraft in service”

An aircraft is considered to be “in service” from the beginning

of pre-flight preparations by the personnel or by crew for a
specific flight until 24 hours after landing.

Five categories of offences are covered under this convention

(Article 1). These are:

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• Acts of violence against a person on board an aircraft “in
flight” if that is likely to endanger the safety of the
aircraft.
• Destroying or causing damage to an aircraft “in service” so
as to render it incapable of flight or which is likely to
endanger it “in flight”.
• Placing or causing to be placed on an aircraft “in service”
any device or substance which is likely to have this effect.
• Destruction or damage of air navigation facilities or
interference with their operation, if any such act is likely to
endanger the safety of aircraft “in flight”.
• Communication of information which is known to be false
thereby endangering the safety of an aircraft “in flight”. This
covers bomb hoaxes.

The Montreal convention is supplemented by the Protocol for the

suppression of Unlawful Acts of violence at Airports serving
international Civil Aviation.51 this protocol brings attacks
against individuals in airports within the armpit of the
convention.

This convention and protocol requires countries party to the

convention to assume jurisdiction if the offence is committed in
the territory of that country or against that country or on
board an aircraft registered in that country. Member states
also bind themselves in accordance with international law and
national law to take all practical measures for purposes of
preventing the offences set out in Article 1 of the Montreal
Convention. State parties to the convention also pledge to co-
operate with each other by communicating relevant information to
each other.

83
Contracting parties to this convention are also required to
render assistance to civil aircraft of other contracting parties
which find themselves in distress in their airspace (Article
25). If the host state is not a party to the convention, there
is still on humanitarian grounds, no reason for a distinction to
be made between its position and that of a party to the
Convention.

Distress
Customary international law recognizes that a coastal sate has
no jurisdiction over persons on board a foreign vessel forced to
put into port in distress, and scholars have suggested that the
same principle should apply to aircrafts forced to land in
distress. In Nkondo v Ministry of Police, the court was called
upon to decide whether it had jurisdiction to try a member of
the ANC military wing whose flight form Mozambique to Lesotho
had been forced by adverse weather condition to land in
Bloemfontein. In upholding the applicability of the maritime
distress rule to aircraft, smuts stated

In view of the established law in regard to the rights of ships

in distress to enter a port, there appears to be no reason why
aircraft in distress should not also enjoy the privilege accorded
to ships in distress and it must be accepted that international
law accords aircraft of one country the right, when in distress,
to land on the territory of another country and that as a general
such aircraft and their occupants may not be subject to penalties
or unnecessary detention by the territorial sovereign for
entering under such circumstances.

Smuts J was not prepared to apply this general principle to a

person suspected of crimes against the security of the state in

84
which the aircraft was forced to land and held that Nkondo might
be tried under the security laws. The executive proved to be
more sensitive (probably realizing the advantages attached to
such a rule for its own members) and ordered the release of
Nkondo and his return to Lesotho.

Aerial intrusion
Although a state may use force against an unauthorized military
aircraft in its airspace in the exercise of the right of self-
defense, it is not permitted to take such action against
trespassing civilian aircrafts, the shooting down by soviet jets
in 1983 of a Korean Airlines aircraft (flight 007) which had
strayed over military sensitive soviet airspace prompted an
amendment to the Chicago convention Article 3bis, inserted in
1984, provides that, while every state , in the exercise of its
sovereignty, is entitled to require the landing at some
designated airport of a civil aircraft flying above its
territory without authority, states must refrain from resorting
to the use of weapons against civil aircraft in flight and that,
in case of interception, the lives of persons on board and the
safety of the aircraft must not be endangered.

Outer space
Sovereignty over the airspace of a state was accepted as
extending for an unlimited distance in accordance with the
private-law principle cuius est solum eius est usque ad caelum.
However, when the first satellite-sputnik- was launched into
outer space in 1957, it became clear that this principle could
no longer apply. Since then a number of unanimously adopted
general assembly resolution (accepted immediately as customary
law) ad multilateral treaties have expounded on coherent legal
regime for outer space. The most important of these is the

85
Treaty on the Principle Governing the Activities of States in
the Exploration and Use of Outer space, Including the Moon and
Other Celestial Bodies of 1967, which proclaims the following
principles;

Article I

The exploration and use of outer space, including the moon and
other celestial bodies, shall be carried out for the benefit and
in the interests of all countries, irrespective of their degree
of economic or scientific development, and shall be the province
of all mankind.

Article II

Outer space, including the moon and other celestial bodies, is

not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.

Article III

States Parties to the Treaty shall carry on activities in the

exploration and use of outer space, including the moon and other
celestial bodies, in accordance with international law,
including the Charter of the United Nations, in the interest of
maintaining international peace and security and promoting
international co-operation and understanding.

Article IV

States Parties to the Treaty undertake not to place in orbit

around the earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction, install such weapons
on celestial bodies, or station such weapons in outer space in
any other manner.

Article V

States Parties to the Treaty shall regard astronauts as envoys

of mankind in outer space and shall render to them all possible
assistance in the event of accident, distress, or emergency
landing on the territory of another State Party or on the high
seas. When astronauts make such a landing, they shall be safely

86
and promptly returned to the State of registry of their space
vehicle.

Article VI

States Parties to the Treaty shall bear international

responsibility for national activities in outer space, including
the moon and other celestial bodies, whether such activities are
carried on by governmental agencies or by non-governmental
entities, and for assuring that national activities are carried
out in conformity with the provisions set forth in the present
Treaty. The activities of non-governmental entities in outer
space, including the moon and other celestial bodies, shall
require authorization and continuing supervision by the
appropriate State Party to the Treaty. When activities are
carried on in outer space, including the moon and other
celestial bodies, by an international organization,
responsibility for compliance with this Treaty shall be borne
both by the international organization and by the States Parties
to the Treaty participating in such organization.

The treaty does not attempt to define the point at which the
earth‟s atmosphere, hence airspace, ends and outer space begins.

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UNIT 7
IMMUNITIES FROM NATIONAL JURISDICTIONS

A state has jurisdiction over all persons and property within

its territory and over all acts that take place within its
territory. In certain circumstances however it will not exercise
its territorial jurisdiction. This occurs where a foreign
sovereign, its property, or its agents are involved. Although
such or property are not exempt from legal liability or immune
from the observance of the local law, international law
assertion of jurisdiction in such a case may be ascribed to
international comity or to the argument that because all
sovereigns are equal no one of them can be subjected to the
jurisdiction of another without surrendering a fundamental
right.

In Liebowitz v Schwartz , Nicholas J, gave his approval to both

these explanations when he observed that „the courts of the
country will not by their process make a foreign state a party
to legal proceedings against its will and stated that this
principle was founded on grave and weighty considerations on
public policy, international law and comity.

The immunity accorded to foreign sovereigns takes two forms

firstly sovereign immunity which involves the immunity of a
foreign state, the government of a foreign state, or a
department of such a government. Secondly, diplomatic and
consular immunity, which deals with the immunities and
privileges granted to foreign diplomats and consuls.

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Sovereign immunity
Sovereign immunity has its origin in the immunity of the person
of the foreign sovereign from the jurisdiction of municipal
courts. Later the personification of the sovereign was replaced
by the abstraction of the state and its organs.

Until the emergence of the socialist state after the Russian

revolution in 1917, neither the sovereign nor her government
engaged in trade or commercial activities to any applicable
degree. Consequently states were prepared to grant immunity to
all acts of foreign sovereigns and their governments including
those of their armed force and state owned vessels. Sovereign
immunity was absolute. The advent of the socialist state and the
emergence of the state owned trading corporation altered the
situation. Today many sates support a doctrine of restricted or
qualified immunity according to which immunity from the
jurisdiction of the municipal courts will be granted in respect
of acts jus imperil (ie governmental public activities)and not
in respect of acts jure gestionis (ie commercial activities).

The reason for this change in attitude is that a foreign

government which enters into an ordinary commercial transaction
with a trader must honour its obligations like other traders and
if it fails to do so, it should be subject to the same laws and
amenable to that same tribunals as they are. The doctrine of
restricted or qualified immunity in respect of the commercial
activities of states has probably acquired customary
international law. This appears from the adoption by the General
Assembly of the UN a convention on jurisdictional immunities of
states and their property.

89
The principle basis for jurisdiction is territorial. A state has
authority over people, things & activities within its own
territory. However International law recognises that there are
certain people, things & activities entitled to immunity from
the enforcement of local law. Immunity is from the enforcement
of local law and not from the law itself. The following are
immune to municipal laws
1. Foreign states and heads of foreign states
2. Diplomats
3. Armed forces of foreign states
4. Diplomatic representatives & consuls of foreign states
5. International Organisations

Heads of state and governments are immune to criminal and civil

jurisdiction of other states. They are two schools of thought
that immunity is in two forms in regard to criminal
jurisdiction.

1. Immunity ratione personea

Attaches to senior state officials, such as heads of state of
government or ministers of foreign affairs acts while they are
in office and protection is accorded to such a person.

2. Immunity ratione materiae

This attaches to acts of official functions. It comes to both
former and serving heads of state. This can be seen in the case
of R v Bow Street Metropolitan Stipendiary Magistrates, Ex Parte
Pinochet [1999] 2 All ER 97 Which illustrates this principle.
Pinochet overthrew the Chilean president Allende. Pinochet then
became the Head of State of Chile until 1990 when he resigned.

90
In 1998 whilst visiting UK for medical treatment, Spain
requested for the extradition of Pinochet so he could face
charges of torture and conspiracy to torture. This case
established that former Heads of States have limited functional
immunity (ratione materiae) from prosecution. It also confirmed
the principle that current Heads of States have complete
immunity from criminal prosecution.

In the case of Tatchell v. Mugabe (2004) unreported

An application for the arrest warrant of President Mugabe, head
of state of Zimbabwe was refused. Judge Workman held that
International customary law provides absolute immunity to any
Head of state. However this is in relation to prosecution in
national courts. Current Head of states may not have immunity
from prosecution before international tribunals i.e. ICC.

His was illustrated in the Arrest warrant Case (Democratic

Republic of the Congo v Belgium) Icj Rep 2002 p3 An
international arrest warrant was issued in absentia by a Belgian
Judge for Abdulaye Ndombasi of Democratic Republic of Congo
(DRC). He was charged with offences amounting to grave breaches
of speeches which incited racial hatred and led to murder and
executions. He was however not in Belgium when the warrant was
issued. The Warrant was circulated in most states including DRC.
The arrest warrant was issued when Abdulaye was DRC foreign
Affairs minister

DRC made an application against Belgium claiming that Belgium

lacked jurisdiction in international law to issue a warrant
because Abdulaye had diplomatic immunity by virtue of being a
foreign Affairs minister.

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The Court upheld DRC immunity claim by 13 votes to 3. It is
established in International Law that diplomatic and consular
agents and officers holding certain posts such as Head of
States, Head of government & Minister of Foreign affairs shall
enjoy immunities from jurisdiction in other states both for
civil & criminal. Immunity is not granted for personal benefit
but to ensure effective performance of their functions of behalf
of the state.

Extraterritoriality fiction
The inviolability of the diplomatic mission led to suggestion
that it was accorded a special status by the receiving state
because it was an extension of the territory of the sending
state that it was extraterritorial. This explanation for the
inviolability of the mission is no longer accepted. Instead it
is generally agreed that the inviolability of a mission is based
on functional necessity; that such inviolability is necessary to
enable the mission to perform its functions properly. The
extraterritoriality theory was firmly repudiated by gross Kopf j
in santos v santos, when he held that a marriage solemnized in a
foreign embassy or consulate by a person (in this case the
Portuguese vice-consul) who was not a recognized marriage
officer under south African law was invalid. The judge accepted
the view of Michael Akehurst that

„Diplomatic premises are not extraterritorial; acts occurring

there are regarded as taking place on the receiving state, not on
the of sending state‟

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Diplomatic immunities
Diplomats are granted extensive protection and immunities.
Article 29 states, the person of a diplomatic agent shall be
inviolable. He shall not be liable to any form of arrest or
detention. The receiving state shall treat him with due respect
and shall take all appropriate steps to prevent any attack on
his person, freedom of dignity‟.

The private residence of a diplomat enjoys the same

inviolability as the mission according to Article 31.

In Zambia the law that governs immunity is CAP 20 of the laws of

Zambia. The Vienna convention on diplomatic relations is an
annex to Cap 20 this is to mean that it has been domesticated to
become part of the national laws.

In the Zambian context what immunities are given to the

diplomatic representative are in article 4 of CAP 20. The
procedure for accreditation is that letters are first sent to
the receiving state so they can either veto or confirm
acceptance of the envoy. The receiving state is under no
obligation to give reasons for such rejection. When their names
are cleared the first to arrive in the receiving state is to
present credentials to the president. Diplomats are accredited
to the president while consulars on the other hand are
accredited to the minister of foreign affairs.
Relevant provisions of the Vienna Convention on diplomatic
immunities
Article 1
Defines who a diplomat is and what their exceptions are. It
helps you know which person and property are inviolable.

93
Article 9
If a receiving state sends back or rejects a diplomatic
representative it is not at war with the sending state as a
country but at war with the diplomatic representative. A
receiving state is under no obligation to give reasons for
refusal of acceptance of such a representative or sending back
of such a representative. However, reasons can be given by the
state if the receiving state decides to do so.
Article 11
Concept of reciprocity
In the absence of specific agreement as to the size of the
mission, the receiving State may require that the size of a
mission be kept within limits considered by it to be reasonable
and normal, having regard to circumstances and conditions in the
receiving State and to the needs of the particular mission.
The receiving State may equally, within similar bounds and on a
non-discriminatory basis, refuse to accept officials of a
particular category.
Article 22(3)
The premises of the mission shall be inviolable. The agents of
the receiving State may not enter them, except with the consent
of the head of the mission.
Article 23
The sending State and the head of the mission shall be exempt
from all national, regional or municipal dues and taxes in
respect of the premises of the mission, whether owned or leased,
other than such as represent payment for specific services
rendered.
Article 24
Indicates that archives and documents are inviolable at any time
and where ever they may be.

94
Article 27
A receiving state shall permit free communication without being
tapped in on the port of the mission by the receiving state.
Article 27(3)
Diplomatic bag shall not be opened or detained. Bags should be
properly marked and labeled indicating who the owner is.
Article 29
Which persons shall be inviolable and what steps should be taken
to protect them.
Article 30
Private residence shall also enjoy the same immunity except in
the case of
1. A real action relating to real and private immovable
property based in the receiving state in your name except if he
is holding it on behalf of the sending state and the person is
immune to testify if the land is in contention.
2. An action relating to execution of a will in his personal
capacity as an executor/trix except where he is doing it on
behalf of the sending state. Where the ambassador is the
executor he can be called to testify.
Article 31(2)
Action relating to professional or commercial activity carried
on by the diplomatic representative in their capacity they will
be held liable.
Article 32
Gives category of individuals who can enjoy immunity, here the
immunity can be waived.
Article 32 (4)
Talks about waiver from civil and criminal proceedings. Waiver
on jurisdiction and waiver on execution of the judgment.

95
Article 34
Which taxes a diplomat is directly exempt from indirect taxes on
food products. Taxes due to personal property and the ambassador
will pay for it. Charges levied for specific devices rendered.
Registration costs or mortgage fees and everything else.
Article 36
Provides for exception of custom duties i.e. what they cannot
pay for.
Article 37
Members of the diplomatic family household if they are not
nationals they shall enjoy privileges stated. Members of
technical staff, members of administrative staff and their
families if not nationals and permanent residents will enjoy
privileges in respect of acts performed in the course of their
duty.

Note: To provide proper guidance to the client, identify the

level of employees, their nationality, if family member identify
how close their relationship is (family ties) what they have
done, is it done in the course of their duty or private
capacity. Or is it done on behalf of the mission or receiving if
not they will be liable. National from that country who is a
servant will be punished according to the laws of the receiving
state.

Termination of diplomatic relation

They are seven ways in which diplomatic relations may be
terminated
1. Recall of an envoy by his accrediting state. This is done
by a letter of recall which is handed over to the receiving
state.

96
2. By notification of the sending state to the receiving state
that the envoys functions have come to an end.
3. Request by the receiving state to the sending state that
the envoy be recalled due to undiplomatic actions and sometimes
no reason is given at all.
4. By delivery of the passport to the sending state.
5. Notification by the receiving state to the sending state
that their envoy has been declared persona non granta.
6. Fulfillment of the object and purpose of the mission by the
envoy i.e. where the envoy who was sent on a specific mission
has served his term.
7. Expiration of the letters of crendis given for a limited
period of time.

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UNIT 8
THE LAW OF THE SEA
INTRODUCTION
The law of the sea is that law by which both coastal and
landlocked countries regulate their relation in respect of those
areas subject to the jurisdiction of coastal states and in
relation to those areas of the sea and sea bed beyond national
jurisdiction.

The rules governing the sea are drawn from both custom and
treaty law.

The concept of "freedom of the seas developed as a limitation

that restricted national attempts to unreasonably extend the
range of exclusive coastal sovereignty into international
waters. Such rights conflicted with the rights of all states to
fish and to navigate over international trade routes.

Historically, navigation on the high seas was open to everybody

as were also fisheries, but in the fifteenth and sixteenth
centuries the period of great maritime discovery by European
navigators, claims were laid by the powerful maritime states to
the exercise of sovereignty indistinguishable from ownership,
over specific portions of the open sea. For example, Portugal
claimed maritime sovereignty over the whole of the Indian ocean
and a very great portion of the Atlantic Ocean. Spain claimed
virtually the whole of the Pacific Ocean and the Gulf of Mexico
while Britain laid claim to the North Sea.

Grotius was one of the first scholars to attack these extensive

claims and his objections were based primarily on two grounds:

98
1. No ocean can be the property of a nation because it is
impossible for any nation effectively to take it into possession
by occupation.

2. Nature does not give a right to anybody to appropriate

things that may be used by everybody and are exhaustible in
other words, the open sea is res gentium or res extra
commercium.

In opposition to the principle of maritime sovereignty, the

principle of the "freedom of the high seas" or "the freedom of
the open seas" developed. This principle however, served only
the interests of the more powerful nations. It authorized their
vessels to freely fish, mine and navigate without limitation. A
coastal state was precluded from interfering with a foreign
vessel's activities, just three miles offshore as well as the
sovereignty of the nation whose flag is sailed under. The three
nautical mile rule was developed in the early 16th century. The
rule was that the coastal state could dominate only such width
of coastal waters as lay within the range of a cannon shot from
shore batteries. The assumption was that territorial sovereignty
extends as far as the power of arms can reach. In 19th century
the three mile rule received widespread recognition. But by the
end of the Second World War, coastal states began to extend
their sovereignty beyond the traditional three mile limit. Some
states claimed full sovereignty over large areas.

Less developed states watched as more developed nations entered

their general maritime regions to fish and exploit the nearby
oceans with technology not available to the coastal state. As
more and more nations began to extract resources from the sea,

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pressure mounted to compress the notion of freedom of the seas.
New nations emerging from colonialism began to espouse the view
that freedom of the seas served the interests of large and
economically powerful nations.

The historical regime of freedom of the seas did not incorporate

the interests of the new members of the international community-
especially those seeking to facilitate a more equitable
distribution of the ocean's resources. These pressures led to
the UN sponsoring a number of conferences on the law of the sea.
The first UN conference met in Geneva from 24 February to 27
April 1958. This conference adopted four Conventions:
1) The Convention on the territorial sea and the Contiguous
zone;
2) The Convention on the High Seas;
3) The Convention on Fishing and Conservation of the Living
Resources of the High Seas; and
4) The Convention on the Continental Shelf.

The four conventions of 1958 provided a regime for the use of,
and rights to, the sea and continental shelf. Most of their
provisions have been incorporated in the 1982 United Nations
Convention on the law of the sea with little or no change.

THE 1982 UNITED NATIONS LAW OF THE SEA CONVENTION

(UNCLOS)
This was the product of the third multilateral treaty
negotiation on the law of the sea, consisting of numerous
meetings from 1974 to 1982. 170 nations originally signed the
treaty. One of the provisions of the treaty was that it would
enter into force, one year after the sixtieth State ratified the

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treaty. In 1993 Guyana became the sixtieth country to ratify the
treaty and it therefore entered into force in November 1994.

This Convention codifies the law of the sea and it governs the
now expanded range of sovereignty in the ocean water areas as
established by the Convention these are:
(1) Internal waters;
(2) Territorial sea;
(3) Contiguous zone;
(4) Exclusive Economic Zone;
(5) High Sea;
(6) Continental shelf; and
(7) Deep Sea bed

Internal Waters
Article 1(8) of UNCLOS defines Internal waters as "waters on the
landward side of the baseline of the territorial sea". Here a
State has the right to control its bays, rivers and other
internal waters. It has exclusive sovereign jurisdiction to
expel invaders; and has interest in monitoring military and
commercial activities of foreign vessels.

The term baseline refers to the geographical yardstick for

distinguishing internal waters from the sea. It is the point
where the sea intersects with the edge of the land.

There are however two problems with the application of exclusive

jurisdiction by the coastal state over its internal waters.

(1) Problem of jurisdiction over events occurring on foreign

vessels in port; and

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(2) Conflicting rights over large bays containing more open sea
than the typical bay.
Ports - under international law, each state has the absolute
right to control the internal waters contained within its ports.
Customary practice has however, developed certain limitations on
this right.
1. When a foreign warship enters internal waters with
permission, the port authorities do not board it - for mutual
security reasons.
2. Merchant and other private vessels have the implied right
to enter internal waters of another state without express
permission, but they can be boarded for customs and immigration
purposes.

However, UNCLOS does not cover the important jurisdictional

problem where a member of a foreign crew commits a crime while
in port. In such a situation either the laws of the coastal
state or the laws of the state of the vessel's registration will
apply. Where the crime does not affect the tranquility of the
coastal state, the flag state rather than the port state usually
exercises primary jurisdiction to prosecute the criminal. This
arrangement facilitates smooth progress of international
commerce and avoids undue interference with the movement of
ships.

When a crime committed on board a ship in port of the coastal

state causes a significant intrusion on the port's tranquility,
the perpetrator becomes subject to prosecution by the port
state. In some regions however, all crimes occurring within
internal waters trigger costal state's competence to prosecute.
Under customary practice, the flag state is competent to act if
port state chooses not to prosecute.

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Bays - Most bays consist of only internal waters. However, large
bays present a problem of whether they only contain internal
waters or whether they also contain territorial and
international waters. This type of bay illustrates the tension
between freedom of the seas in international waters and the need
for coastal states to control activities in a strategic bay
penetrating deep into its coastline. An example is when in 1986
the USA warplanes were attacked over the gulf of Sidra in Libya.
Muammar Gadhafi the then President of Libya had drawn A line of
death across the mouth of this gulf which is approximately 300
miles across. At its deepest indentation it extends well over
100 miles.

UNCLOS defines a bay as a well-marked indentation whose

penetration constitutes more than a curvature of the coast. An
indentation must be as large as, or larger than, that of a semi-
circle whose diameter is a line drawn across the mouth of that
indentation.

A coastal state normally exercises jurisdiction up to twelve

nautical miles from its coast. In the case of a bay, if the
semi-circle diameter referred to in UNCLOS is less than 24 miles
between each side of the mouth of the bay, its waters consist
solely of internal waters. If the diameter is more than 24
miles, the bay also contains high sea or international waters in
the centre of the mouth and territorial water up to 12 miles.

Another type of bay is the historic bay. Such bays contain only
internal waters as opposed to the territorial waters discussed
in relation to other bays.

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Such bays have their mouths wider than 24 miles limitation of
the UNCLOS if over a long period of time, a state claims
exclusive sovereignty over a large bay that contains one or more
of the other categories of ocean waters because of a distance
between its natural entrance point that is more than 24 miles.

If other states do not dispute then they acquiesce in the

coastal state's treatment of the large historic bay as
consisting of only internal waters.

TERRITORIAL SEA
States have always disagreed between the High seas and the
territorial sea. Bold unilateral decisions were witnessed in the
15th and 16th centuries extending the range of national claims
deep into what is now considered as the High Seas. Denmark and
Sweden claimed large portions of the globe's northern sea. Each
claimed complete sovereignty over the Baltic sea. England
claimed the entire English channel and much of the North Sea.
The Pope as head of the Holy See ceded most of the Atlantic and
Pacific oceans to Spain and Portugal. These extravagant claims
were opposed by other nations and were abandoned by the
beginning of the 18th century.

The sheer inability to control such vast areas afforded

credibility to the "cannon shot" theory of coastal jurisdiction.
A nation could claim only the adjacent sea belt that it could
actually control with its shore based military power.

Under UNCLOS, the territorial sea extends outwards, twelve

nautical miles from the national coastline. The coastal State
exercises sovereignty over this portion of territory, to the

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same extent that it does over its land mass. Its range of
sovereignty includes the airspace over the territorial sea, the
seabed below, and the subsoil within this zone.

Under International Law a State must exercise its sovereignty in

this strip of water. As stated in the Anglo-Norwegian Fisheries
Case (England v Norway), To every State whose land territory is
at any place washed by the sea, international law attaches a
corresponding portion of maritime territory consisting of what
the law calls territorial waters - no State can refuse them.
International law imposes upon a maritime State certain
obligations and confers upon it certain rights. The possession
of this territory is not optional, or dependent on the will of
the State but compulsory.

Baseline - The Territorial Sea begins at the baseline. Each

baseline begins where the ocean's edge meets the coastline.
Under article 5 of the UNCLOS, "the normal baseline for
measuring the breadth of the territorial sea is the low water
line along the coast as marked on large-scale charts officially
recognized by the coastal State". However, under International
Law, coastal baselines must follow the general direction of the
coast. Unnatural land contours make it difficult to establish
indisputable baselines. UNCLOS espouse the general principle
that "the sea areas lying within the baselines must be
sufficiently closely linked to the land domain to be subject to
regime of internal waters.

The ICJ set guidelines for the recognition of baselines on

erratic coasts, in the 1951 Anglo-Norwegian Fisheries Case.
Facts were that when Norway announced the location of its
baselines after World War II, it included a substantial portion

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of what were previously international fishing areas within its
internal waters. Norway has many ramparts of rocks and small
islets that interrupt the natural course of its coastline.
Norway drew straight baselines, conveniently encompassing the
rocks and islets off its coast, rather than using the
traditional method of tracking the contour of its irregular
coastline. By placing its baselines at the outer edge of these
rocks and islet configurations, Norway claimed a greater share
of the common fishing area than Great Britain was willing to
recognize. British fishermen had operated off Norway's coast
(within the straight baselines) area set by Norway since the
early 1900.

The ICJ set out the general rules for delimiting irregular
coastlines:
1) Delimitation of sea areas has always been an international
aspect and cannot be dependent merely upon the will of the
coastal State.
2) It is the land that confers upon the coastal State the
right to the waters off its coasts. It follows that the drawing
of baselines must not depart to any appreciable extent from the
general direction of the coast.
3) The idea of whether certain sea areas lying within
baselines are sufficiently closely linked to the land must be
liberally interpreted in the case of a coast, the geographical
configuration of which is as irregular as that of Norway.

The majority of the judges approved the straight baseline method

in these unusual circumstances because the resulting straight
lines were sufficiently aligned with the general direction of
the Norwegian coast.

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Right of Innocent Passage
There is a right of innocent passage in the territorial sea.
Article 18(1) of the UNCLOS defines passage as navigation
through the territorial sea for the purpose of
a) traversing that sea without entering internal waters, or
b) proceeding to or from internal waters.
Under Article 19 "innocent passage" means passage that is "not
prejudicial to the peace, good order, or security of the coastal
state. It requires foreign vessels to ascertain and comply with
the innocent passage regulations promulgated by the coastal
state such as regulations relating to customs, immigration and
sanitation in order to protect the coastal state's interests in
its territorial waters.

An ocean liner carrying passengers entering into another

country's territorial waters must comply with local tax laws
affecting its cargo, passport regulations affecting its
passengers.

Strait passage
Another effect of the UNCLOS expansion of the territorial sea
from three to twelve nautical miles impacted a number of
strategic straits or natural sea passages that connect two large
maritime areas. For example the strait of Hormuz connects the
Persian Gulf and the Indian Ocean, the strait of Gibraltar
connects the Mediterranean Sea and the Atlantic Ocean. The
relatively narrow width of these straits presents a problem.
When the navigable channel of such a strait is more than 12
miles from each of the national coasts bordering on the strait,
it still contains some international waters or high seas and

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ships are entitled to unrestricted passage through the high sea
portion of such straits.

When such a strait is less than 24 miles wide at its narrowest

point, however, it contains only territorial waters. As a result
of this UNCLOS addition of nine miles to the territorial sea"
approximately 116 of these comparatively narrow "international
straits" formerly containing High Seas - suddenly embodied only
territorial seas.

Under customary law states passing through such straits would

apply "innocent passage" rules. However, under UNCLOS "innocent
passage" rules do not apply to such special straits. Military
and commercial vessels are entitled to free transit in them,
just as if those special straits still contained slices of High
Seas within them.

The Bering Strait between Russia (Siberia) and the United States
(Alaska) provides a useful illustration. That Strait is 19 miles
at its narrowest point.

Ships pass through it when going between the Arctic and the
northern Pacific oceans. Formerly, the Soviet Union claimed a 12
mile territorial sea while before 1988 the USA claimed 3 mile
territorial sea. This left a four mile slice of the High Seas at
the narrowest point of passage, Military and Commercial vessels
could freely navigate in that four mile strip of international
waters.

Now that the USA has adopted a twelve-mile Territorial Sea,

there are no High Seas left in the strait. This means that all
states using this stretch of waters would have been subjected to

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rules of innocent passage as promulgated by the subjective
determination of Russia and the USA.

Note that at its narrowest point, the Bering Strait now contains
only the territorial Seas of both Russia and the USA - delimited
by an equidistance principle in the middle of the navigable
channel.

Under Article 38(2) of UNCLOS ships and aircraft may undertake

"transit passage" through straits that now contain only
territorial waters that formerly contained international waters
"solely for the purpose of continuous and expeditious transit of
the strait between one part of the high seas and another part of
the high seas" The coastal state may not impede such transit.

Under Article 42 of UNCLOS, the coastal state may promulgate

rules ensuring transit passage that establish sea-lanes and
traffic separation schemes for safe navigation, as well as the
prevention of pollution, fishing, and offloading of persons and
commodities. However, none of these limitations should be
applied in a way that impedes the right of transit through such
territorial seas when they bridge two portions of the High Seas.

THE CONTIGUOUS ZONE

This zone extends from the base-line to twenty four nautical
miles. Here a coastal state may also exercise limited
jurisdiction.

Under Article 33(1) of UNCLOS, the activities of foreign states

or their vessels in this zone are subject to the jurisdiction of
the coastal state for the express purpose of enforcing "custom,

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fiscal, immigration, or sanitary laws." The contiguous zone's
proximity to the coastline requires a balance between
international and the interests of the coastal state.

THE EXCLUSIVE ECONOMIC ZONE

This is the area beyond and adjacent to the territorial sea
which shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is
measured.(art 55 & 57 UNCLoS) The concept of the EEZ evolved
with the realization that fishery resources are not
inexhaustible, and that it was imperative to adopt conservation
measures.

Coastal states do not have complete sovereignty over the EEZ,

but only sovereign rights" for the purpose of exploring and
exploiting, conserving and managing the natural resources
whether living or non-living, of the seabed and subsoil and the
superjacent waters" and jurisdiction with regard
1) to establishment and use of artificial islands,
installations and structures;
2) marine scientific research; and
3) protection and prevention of the marine environment. (art
56)

The coastal state is responsible for determining both "the

allowable catch of the living resources in its EEC. (art 61.1)

A coastal state is responsible for determining its capacity to

harvest the living resources in its EEZ. [art. 62] The coastal
state's task is to decide, in respect of the EEZ's living
resources, the surplus available over its own harvesting

110
capacity" That surplus is to be made available to other states,
either through agreements or other arrangements taking into
account certain criteria, for example, the significance of
living resources to the coastal state, interests of landlocked
countries, and interests of those states whose nationals have
habitually fished in the zone. The final say however, is with
the coastal state.

Other states enjoy the right of freedom of navigation, over

flight and the laying of submarine cables and pipelines provided
they respect the rights and duties of the coastal state and
comply with the laws and regulations of the latter. Delimitation
of the EEZ between states with opposite or adjacent coasts is to
be effected by agreement on the basis of international law as
referred to in Art. 38 of the statute of the lCJ, in order to
achieve an equitable solution.

HIGH SEAS
Often referred to as "international waters" consists of that
part of the ocean not subject to the complete sovereignty of any
state. The concept of freedom of the high seas applies only to
that portion of the sea not included in the EEZ, territorial sea
and internal waters.

The freedom of the high seas is to be enjoyed by all states and

covers freedom of navigation, of fishing, to lay submarine
cables and pipelines, and the freedom of over flight. These
freedoms must be exercised with reasonable regard to the
interests of other states.

Article 95 of UNCLOS indicates that Jurisdiction over ships on

the High Seas lies with the flag state. Thus both military and

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mercantile ships are immune from the jurisdiction of any other
state other than the flag state.

The limitation to the freedom of navigation is that every state

may seize a pirate ship or aircraft, or a ship taken by pirates
and arrest the persons and seize the property. Piracy is defined
as, any illegal acts of violence, detention or any act of
depredation committed for private ends by the crew or passengers
of a private ship or private aircraft.

THE CONTINENTAL SHELF

The continental shelf is a geographical term used to describe
the gently sloping ledge covered by shallow water projecting
from the shoreline of many land masses before a steep descent to
the ocean waters. Continental shelves vary considerably in
width; off the west coast of the USA, the shelf is less than
five miles whereas the entire of the north sea is continental
shelf.

Continental shelf is defined as the gently sloping platform of

submerged land surrounding the continents and islands. Normally
it extends to a depth of approximately 200 meters at which point
the seabed falls sharply.

Under Article 76 of UNCLOS, the Continental shelf of a coastal

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, or to a distance of 200 nautical miles from
the baseline from which the breadth of the territorial sea is
measured.

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The coastal state exercises sovereign rights for purposes of
exploring and exploiting its natural resources. The coastal
states -fights are exclusive in the sense that if it does not
explore or exploit the continental shelf, no one may undertake
these activities without the express consent of that coastal
state.

The coastal state's rights in the continental shelf do not

affect the status of the superjacent waters as high seas, or
that of the airspace above those waters.

The delimitation of the Continental Shelf between states with

opposite or adjacent coasts shall be effected by agreement on
the basis of international law, as referred to in Article 38 of
the statute of the ICI, in order to achieve an equitable
solution. [art. 77]

THE DEEP SEABED

The deep seabed is rich in minerals, particularly manganese
nodules. The extraction of these minerals is now thought to be
scientifically feasible and therefore there has been heighten
interest in the deep seabed, With this increasing interest, a
number of questions have arisen. For example, to whom should the
resources found there belong? Should they belong to those few
countries with the technological knowhow to exploit them or
should they be conserved for future use by those nations which
are yet to acquire technology capable of exploiting those
resources.

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Article 135 of the UNCLOS makes the deep seabed a common
heritage of all mankind and that no state can claim to exercise
sovereignty or sovereign rights in this area. In order to ensure
that activities in this part of the oceans benefit all mankind,
the UNCLOS provides for the creation of an International Seabed
Authority which is mandated to carry out all deep seabed
exploration and exploitation of resources.

The Authority is required by the Convention to, ensure that

proceeds from activities in this area are equitably shared
between all states in such a manner as to foster healthy
development of the world economy and balanced growth of
international trade, and to promote international co-operation
for the overall development of all countries, especially
developing states. [art. 140 & 150]

In addition, there is a separate body called the Enterprise,

which is responsible for the actual conduct of deep seabed
operations for the authority.

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UNIT NINE
State Responsibility
Diplomatic Protection and the Treatment of Aliens
This lecture is a summary extract whose main source J Dugard
International Law ‘A South African Perspective’ (2005) 269 –
307.

When a state commits an international wrong against another

state it incurs international responsibility. A state may incur
liability for:
i. International wrongful acts e.g. injury on the defendant
state‟s national
ii. Trans-border environmental damage

In such a case a delinquent from the violation of a treaty

obligation or the violation of a general obligation owed towards
all states. The law of state responsibility in international
resembles the law of tort in domestic law. State responsibility
refers to the circumstances in which a state would be held
liable in international law.

There are two kinds of state responsibility:

i. Breach of Treaty
- See Chorzow case (1928)
It is a principle of International law that any breach of
an agreement (treaty) invokes reparation by the party in
breach
ii. Breach of Contract
- See Anglo Iranian Oil case
If there is a breach of contract between a company
(International) and a state, then the company will urge its

115
government to espouse its claim in the international arena. This
is because a company doesn‟t have international locus standi.

A state may incur responsibility directly or indirectly. It

incurs responsibility directly when, acting through it organs or
agents, it violates its obligations towards another state under
a treaty or general international law. Indirect responsibility
is when a state injures the person or property of a foreign
nation and in so doing is deemed to have injured the state of
nationality of the injured person itself.

Substantive rules requiring states to act in a particular way or

to obtain from certain actions in their relations with other
states or rules governing the treatment of the nationals of
other states may be termed the „primary rules‟ of state
responsibility. Rules which govern the attribution of conduct to
a state, the invocation of the responsibility of a state and the
consequences of a wrongful act are termed the „secondary rules‟
of state responsibility.

In this lecture, no attempt is made to examine the primary rules

of direct state responsibility because doing so will going
beyond the scope of this topic. Instead this lecture will focus
on indirect state responsibility, frequently described as
„diplomatic protection‟ or the „treatment of aliens‟, which
constitutes a special regime within the field of state
responsibility with its own primary and secondary rules.

Attribution of conduct to a state

„Every international wrongful act of a state entails the
international responsibility of that particular state‟. An
internationally wrongful act occurs when conduct is attributable

116
to the state and constitutes a breach of international
obligation of the state

It is no defence to a violation of international law that the

conduct in question is permitted by the municipal law of the
defendant state. As judge Lauterpacht observed in the Norwegian
loans Case.

“National legislation… may be contrary to the international

obligations of the state. The question of conformity of national
legislation with international law is a matter of international
law… It is not enough for a state to bring a matter under the
protective umbrella of its legislation… in order to shelter it
effectively from any control by international law.”

The conduct of any organ of state „whether the organ exercises

legislative, executive, judicial or any other function ‟is
considered an act of state.

The conduct of a person or entity not an organ of the state but

empowered to exercise elements of government authority is
considered an act of state. This includes parastatal entities,
public corporations and other subordinate bodies.

A state is responsible for acts performed by officials within

the scope their employment.

As a general principle the conduct of private persons is not

attributable to a state under international law, but where there
is a special relationship between the persons and the state
their conduct is attributable to the state. This includes, for
example ,the conduct of private individuals who though not

117
forming part of the army or police force of a state are employed
as auxiliaries or are sent as „volunteers‟ to neighboring states
with instructions to carryout missions abroad. Also included in
the conduct of groups which act under „the direction or control‟
of the state.

The degree of control to be exercised by the state in order for

conduct to be attributed to it arose in the Nicaragua Case17.
Here the question was whether violations of international
humanitarian law committed by a rebel group operating against
the government of Nicaragua known as the contras might be
attributed to the United States was responsible for the
planning, direction and support it gave to the contras, it
rejected Nicaragua‟s claim that all the conduct of the contras
was attributable to the United States by reason of its control
over them. The court stated that,

“for a conduct to legal responsibility of the united states, it would

in principle have to be proved that the state had effective control of
the military or paramilitary operations in the course of which the
alleged violations were committed.”

Consequently, only in certain individual instances were acts of

the contras held to be attributable to the United States, based
upon actual directions given by the United States.

The cautious approach of the international court was criticized

by the Appeals Chamber of the International Criminal Tribunal
for the former Yugoslavia (ICTY)in prosecutor v Tadic when it
held that the International Court had set too high a threshold

17
(1986) I.C.J. Rep

118
for the test of control. According to the Appeal‟s Chamber it
was sufficient, for attribution to take place, to establish

„overall control going beyond the mere financing and equipping

of such forces and involving also participation in the planning
and supervision of military operations‟.

According to Art 9, the conduct of a group of persons may be

attributed to a state if the group were in fact exercising
elements of governmental authority in default of the official
authorities. This principle is illustrated by Yeager v Islamic
Republic of Iran in which the act of the Revolutionary Guards as
immigration officials at Tehran airport, in immediate aftermath
of the Iranian revolution, were held to be attributable to Iran
on the basis that the Guards, although not actually authorized
by the new government at least authorized elements of government
authority in the absence of official authorities, in operations
of which the new Government must have had knowledge and to which
it did not specifically object.

The conduct of an insurrectional movement which becomes the new

government of a state shall, in terms of art 10, be considered
an act of that state under international law.

Circumstances Precluding Wrongfulness

- Consent on the part of the injured state
- Self-defence taken in conformity with the Charter
- Countermeasures in response to an illegal act
- Force Majeure
- Necessity
- pleading coercion

119
None of these circumstances can be relied on if to do so will
conflict with a peremptory norm of general international law.

Legal consequences of internationally wrongful acts

In the first instance, the state responsible for an
internationally wrongful act is under obligation to cease that
act, if it is continuing, and to offer assurances and guarantees
of non-repetition. Secondly, the responsible state is under
obligation to make full reparation for the injury caused by the
wrongful act. In the Chorzow Factory Case the permanent court of
international justice declared.

„The essential principle contained in the actual notion of an

illegal act …..is that repatriation must, so far as possible wipe
out all the consequences of the illegal act and reestablish a
situation which would in all probability, have existed if the act
had not been committed. Restitution in kind, or, if this is not
possible, payment off the sum corresponding to the value which
restitution in kind would bear…‟
- restitution,
- compensation
- satisfaction

Satisfaction through diplomatic means i.e. an apology from a

delinquent state as opposed to restitution or compensation,
consists in an acknowledgement of the breach of international
law as an expression of regret.

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Countermeasures
Self-help of has no place in a developed legal system but,
unhappily, international law has not reached this stage of
development. Although states rely less frequently on self-help
measures today than in the past, international law still
recognize the right of a state to resort to self-help.

Countermeasures are not to be proportionate and shall not affect

 The obligation to refrain from the threat or use of force
as embodied in the charter of the united nations;
 Obligation for the protection of fundamental human rights;
 Obligation for humanitarian character prohibiting
reprisals;
 Other obligations under peremptory norms
 General international law.
Moreover, a state taking countermeasures is not relieved from
fulfilling its obligations:
 Under any dispute settlement procedure applicable between
it and the respect State;
 To respect the inviolability of diplomatic or consular
agents, premises, archives and documents

DIPLOMATIC PROTECTION
Indirect state responsibility, which is the focus of this
lecture, occurs when a state injures the person or property of a
foreign national within its territory. Here it incurs
responsibility because of its failure to treat the foreign
national according to the minimum standard of justice required
for the treatment of aliens: for instance, by detaining him for
unreasonable period without trial, or by confiscating his

121
property without compensation. The basis for responsibility in
this case is that the defendant state has injured the plaintiff
state by injuring its national. According to the permanent court
of international justice in the Mavrommatis Palestine Concession
Case, „by taking up the case of one of its subjects and by
resorting to diplomatic actions or international judicial
proceedings on his behalf, a state is in reality asserting its
own rights-its right to ensure in the person of its subjects
respect for the rules of international law.
In order to succeed in such a claim the plaintiff is required to
prove that:
1) The injured person was it national;
2) All local remedies have been exhausted; and
3) The conduct of the defendant state violates the rule of
international law relating to the treatment of aliens.

Nationality of natural persons

It is for each to determine under its own law who are its
nationals. There are recognized grounds for the conferment of
nationality which are followed by most states. These are by
birth (jusoli), descent (jus sanguinis), and naturalization,
following upon the period of residence.

While it is a right of a state to prescribe rules relating to

the acquisition of its own legislation, it is international law
which determines whether a state is entitled to exercise
diplomatic protection on behalf of a national.

In most cases nationality and the right of diplomatic protection

will coincide. However, in exceptional cases, international law
may refuse to recognize nationality for the purpose of

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diplomatic protection. This is illustrated by the Nottebohm Case
whose facts are that Mr Nottebohm was born a German national in
1881. He received citizenship through naturalization from
Liechtenstein (plaintiff) in 1939. Prior to this date, in 1905,
Nottebohm lived and performed substantial business dealings in
Guatemala (defendant), and returned frequently to Germany to
visit family. Once Nottebohm received his citizenship from
Liechtenstein, he returned to Guatemala and Guatemalan
authorities updated his nationality in the Register of Aliens.
On July 17, 1941, the United States blacklisted Nottebohm and
froze all his assets which were located in the United States.
War broke out between the United States and Germany, and between
Guatemala and Germany, on December 11, 1941. Nottebohm was
arrested in Guatemala in 1943 and deported to the United States,
where he was held until 1946 as an enemy alien. Once released,
Nottebohm applied for readmission to Guatemala, but his
application was refused. Nottebohm moved his residence to
Liechtenstein (where he was a citizen), but Guatemala had
already taken steps to confiscate Nottebohm‟s property in
Liechtenstein. Guatemala succeeded in 1949. Liechtenstein
instituted legal proceedings against Guatemala in the
International Court of Justice (ICJ), requesting the court
declare Guatemala had violated international law “in arresting,
detaining, expelling and refusing to readmit Mr. Nottebohm and
in seizing and retaining his property.” Additionally,
Liechtenstein requested the ICJ to order Guatemala to pay
compensation as reparation. Guatemala defended by contesting
Nottebohm‟s Liechtenstein nationality.

A state is not required to prove an effective or genuine link

between itself and its national, along the lines suggested in

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the Nottebohm Case as an additional factor for the exercise of
diplomatic protection.

In determining the dominant and effective nationality, said the

Tribunal, it would consider „all relevant factors, including
habitual residence, centre of interest, family ties,
participation in public life and other evidence of attachment‟.

Nationality of Corporations
A state corporation takes the nationality of the State in which
it is incorporated and in whose territory it has its registered
office, which means that the state of incorporation must
exercise diplomatic protection on its behalf. In the Barcelona
Traction case an attempt was made to extend the Nottebohm
principle to corporations. Here it was argued that a company
incorporated and registered in Canada with an 88 per cent
Belgian shareholding had a genuine connection with Belgium which
entitled it, and not Canada, to bring proceedings against Spain,
arising out of injury inflicted on the company by Spain.

This argument was rejected by the international court of

justice. The court distinguished the two cases on the facts,
finding that, unlike Nottebohm, there was a close and permanent
connection with Canada resulting from over fifty years of
incorporation, the holding of board meetings in Canada, and the
maintenance of an offence in Canada. Considerations of public
policy contributed to this decision. May corporations engaged in
transnational business have shareholders form several countries.

If the state of which each of its shareholders is a national is

permitted to bring proceedings on behalf of its shareholder,

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this would result in a multiplicity of claim arising out of
injury to the same company. Clearly this is undesirable. Hence
the court‟s insistence that the state of incorporation should
exercise diplomatic protection.

This rule is absolute. The court acknowledged in obiter dicta

that state of nationality od the shareholder might exercise
diplomatic protection in three situation: first where the direct
rights of shareholders are infringed; secondly, where the
corporation has ceased to exist in its place of incorporation,
and thirdly, where the state of incorporation is itself
responsible for inflicting injury on the company and the foreign
shareholders‟ sole means of protection on the international
level is through their state(s) of nationality.

The third exception is where the state of incorporation itself

is responsible for inflicting injury on the company and the
foreign shareholders.

The discretionary nature of the diplomatic protection

A state has a right to exercise diplomatic protection on behalf
of a national. It is under no duty or obligation to do so. The
internal law of the state may oblige a state to extend
diplomatic protection to a national, but international law
imposes no such obligation. The position was clearly stated by
the international court of justice in the Barcelona Traction
Case:

‘…within the limits prescribed by the 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

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 behalf it is acting consider that their rights are not adequately
protected they have no remedy in international law. All they can
do is resort to municipal law, if means are available, with few
of furthering their cause or obtaining redress…. The state must
be viewed as a sole judge to decide whether it protection will
granted, to what extent it is granted, and when it will cease. It
retains in this respect a discretionary power the exercise of
which may be determined by considerations of a political or other
nature, unrelated to the particular case‟.

EXHAUSTION OF LOCAL REMEDIES

A state may not bring an international claiming respect of an
injury to a national before the injured person has exhausted all
local remedies. This rule was recognized by the International
Court of Justice in the Interhandel Case as „a well-established
rule of customary international law‟ and by the chamber of the
International Court in the Elettronica Sicula (ELSI) Case as an
important principle of customary International law. The
exhaustion of local remedies rule ensures that the state where
the violation occurred should have an opportunity to redress it
by its own means, within the framework of its own domestic
system.

Calvo clause
Dr Calvo, an Argentine jurist, is credited with an ingenious
device to obstruct diplomatic interventions by the western
powers. In response to the frequent diplomatic interventions by
western power in Latin America, the governments of these states
inserted a clause in contracts between state and alien in which
a latter agreed to confine himself to the available local
remedies and to renounce diplomatic protection. The validity of
the „Calvo Clause‟ has been questioned by so many states,

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including South Africa, on the ground that the national has no
competence to renounce a right that attaches to the state and
not to the national.

THE TREATMENT OF ALIENS

An individual has no right of entry to a state of which she is
not a national. If she is admitted, she may be expelled; but
mistreatment is not permitted in the process of expulsion.
According to article 13 of the international covenant on Civil
and Political Rights, a person facing expulsion is entitled to
submit reasons against her expulsion and to have her case
reviewed by a competent authority „except where compelling
reasons of national security otherwise require‟. Moreover,
according to a 1985 resolution of the general assembly,
„individual or collective expulsion of…..aliens o grounds of
race, color, religion, culture, descent or national or ethnic
origin is prohibited‟.

There is a dispute among states over the standard of treatment

to be accorded to aliens. While some (mainly developing states)
argue that the standard is the national one, requiring states to
treat aliens as well as they treat their own nationals, others
(mainly developed states) maintain that there is an
international minimum standard, which accords to aliens a higher
standard of treatment where the national standard fails to meet
international standards. The difference is illustrated by the
Roberts Claim.

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The property Rights of Aliens-With Special Reference to
Expropriation of property
A state incurs responsibility for injury to the property of an
alien as well as to her person. If a state arbitrary confiscate
the property of an alien without paying compensation, it is
liable for violation of the international minimum standard.

SUCCESSION TO INTERNATIONAL DELICTS

There is a considerable support for the rule that a successor
state is not liable for the international delicts of its
predecessor. A successor state may, however, agree to accept the
delictual responsibility of its predecessor.

Short summary
State Responsibility may arise from; inter alia, the following
acts:
iii. Breach of Treaty
- See Chorzow case (1928)
It is a principle of International law that any breach of an
agreement (treaty) invokes reparation by the party in breach
iv. Breach of Contract
- See Anglo Iranian Oil case
If there is a breach of contract between an company
(International) and a state, then the company will urge its
government to espouse its claim in the international arena. This
is because a company doesn‟t have international locus standi.
v. Responsibility for expropriation of private foreign
property
Expropriation is only justified if it is for a public purpose
and in the public interest. Expropriation must not discriminate

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against aliens, and where it occurs there must be compensation
which must be adequate and effective.
- See Anglo Iranian Oil Co. V Banco Nationale de Cuba
Any expropriation which is in effect confiscation or
discriminatory is unlawful in international law

vi. Responsibility for Debt

The difficulty with debt arises from the question of state
succession. I.e. is a new state obliged to pay the debts of its
predecessor.

The Palmerstone theory suggests that if a state fails to pay its

debt, the creditor nation has every right to use whatever means,
including force to recover the debt.

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UNIT 11
THE USE FORCE
INRODUCTION

International law did not outlaw war or use of force by states

before 1928. The distinction between the just and unjust war and
the notion that recourse to war was permissible only when the
course was just, were not accepted by states. Despite this, if
only for reasons of political expediency, states did seek
justify their military actions in legal terms. In the earliest
history the only distinction that existed then was a just and
unjust war. A just war which was declared was considered to be
legitimate and was founded on theological doctrine, following
the breakdown of the church‟s authority, power was assumed by
the sovereign nation states and the right to the use of force
was recognised as an inherent right of every independent
sovereign state. The right of self defence for instance was
frequently invoked as a ground for military intervention in
order to secure the moral high ground. The covenant of the
League of Nations did not outlaw war. Instead it set up
settlement procedures designed to delay recourse to war, in the
hope that this would restrain states from going to war.

One of the most important developments in international law was

the conclusion in 1928 of a legally binding multi-lateral treaty
called the General Treaty for the Renunciation of War (also
known as the Kellogg- Briand Pact or the Pact of Paris) was
signed. In this treaty, adopted outside the framework of the
league of nations, states condemn recourse to war for the
solution of international controversies, and renounce it as an

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instrument of national policy in their relation with one
another‟. It was also agreed that disputes where to be settled
by „peaceful means‟. The Kellogg-Brian Pact was accepted by over
sixty states, including all the Great Powers of that period.
The first thing that comes to mind with regards to the General
Treaty is that it was adopted to:

1. Condemn the recourse of war.

2. Renounce national policy that accepted war.

More than 60 states were a party to this treaty. Overtime the

General Treaty proved not to be effective but was not
terminated. However, the formation of the United Nations and
adoption of the United Nations Charter superseded the General
Treaty.

From the General treaty Article 2(4) of the United Nations

Charter is what expressly outlaws the use of force:

“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 purpose of the United Nations”

In 1986 the prohibition for the use of force was founded to be

the cornerstone for the formation of the United Nations and was
established as a rule of customary international law to go
against the use of force as stated in the Nicaragua case.
Like the prohibition on murder in diplomatic society, the
prohibition on the use of force in international society is not
always observed however it is recognized by states as a
fundamental principle of the contemporary international legal

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order, as a norm with the status of jus cogens states that
violate this norm either do so covertly or seek to justify their
action under one of the exceptions to the use of force. None
deny the existence of such rule.

What forms of force are prohibited

The United Nations in general prohibits the use of force as well
as threat to use force and it also outlaws wars whether declared
or not.

The prohibition on the use of force in Article 2(4) is limited

to force used in international relations and does not concern
itself with internal relations. The development of human rights
and the rules of self-determination have affected the principle
of this rule. Article 2(4) therefore does not provide a clear
picture of the use of force that is prohibited.

To get a true picture of what is prohibited one would have to

look at the practice of states and organisations like the UN. In
1970 the Declaration on the Interpretation of the United Nations
Charter stated that:

“it is apparent that the rules relating to the use of force have
been modified in order to promote the interest of the people
struggling with self-determination and alien subrogation”

This confirmed that current state practice and political

organisations should be used with regards to Article 2(4) of the
UN charter.

See: Interpretation by the UN on the use of force general

comment.

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Economic force
There is a traditional view that Article 2(4) stops only armed
force. Threat and armed force were used in the preamble of the
UN Charter. Developed States argue that the use of force should
be limited to armed force only whereas developing states hold
that economic force should also be included in the
interpretation of Article 2(4) because it can affect the
political independence of a country. Force therefore does not
necessarily have to refer to armed force but can be economical
and /or political.

Although the argument that economic coercion is prohibited by

art 2(4) is not accepted there is considerable support for the
view that economic coercion violates the principle of non-
intervention unless authorised by the security council acting
under Chapter 7 of the UN Charter and has the same effect as
armed force.

The uncertainty relating to the prohibition on economic coercion

was highlighted in the Nicaragua case when the court stated that
an embargo does not constitute non- intervention.

However, if the purpose of using economic coercion is to weaken

a state‟s economy so as to destabilize the political
independence of a state such an act will be considered to be
inconsistent with the UN Charter in general.

Indirect force
Indirect force occurs where state A gives active support to
rebels of state B such as by permitting them to establish bases
in state A on its territory for attacks on state B in that way

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it makes itself a party to the unlawful use of force.
Encouraging the organization of rebels is discouraged or
prohibited use of force by a state and was confirmed in the 1970
Declaration. In recent times the principles on the use of force
have been confirmed by resolutions of the UN.

Reference: USA and Afghanistan

The United States attacked Afghanistan for its active
involvement in harboring al Qaeda who where a threat to US
security. The United States defended itself by claiming self
defence.

On the prohibition relating to supporting people fighting for

self-determination international law is not clear e.g. the court
in the Nicaragua case was very careful not to give comment.

Circumstances when the use of force is authorised by the UN

1. Under the authority of the Security Council.
2. In exercise of the right to individual or collective self
defence

Exceptions to the above include:

1. Self defence:
International customary law recognises the right to self
defence. However, the extent to which it is applied is wide. The
use of self defence can only be justified as an immediate and
necessary response to a situation threating (a) state security
and (b) vital interests. Article 51 of the UN Charter recognizes
the right to self defence as an inherent right if every state:

“Nothing in the present charter shall impair the inherent right

of individual or collective self defence if an armed attack

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 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 the members in exercise of
the right to self defence shall be immediately reported to 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 right to self defence from the above provision is allowed.

When an event occurs that causes a state to resort to the use of
self defence there is a requirement that such a state should
report to the Security Council on measures to be undertaken.

Anticipatory self defence (two schools of thought)

Some scholars argue that self defence can only be used when
there is an imminent attack on a state. Other scholars hold the
view that self defence is an inherent right in every state as
such a state is justified and has the right to defend itself
where it fears or anticipates an attack. For example, Israel‟s
attack on the United Arab Republic. The right to anticipatory
self defence was reaffirmed in light of the September 11, 2011
attacks on the „Twin Towers‟ in New York.

Legal scholars are divided as to whether art 51 allows

anticipatory self-defense. One school argues that art-51 permits
force to be used in self-defense if, and only if, an armed
attack occurs. Another argues that the customary-law right of
anticipatory self-defense is preserved by the phrase „inherent
right‟ in art 51, and that in the context of modern weaponry it
is ridiculous to argue that the drafters of the Charter could
have intended to exclude such right.

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On a number of accessions states have invoked anticipatory self-
defense to justify their action. Israel justified its attacked
on Egypt, at the start of the Six-Day war in 1967, as
anticipatory self-defense on the grounds that the mobilization
of Egyptians forces on the Israel border, the closure of the
straits of Tiran, and the conclusion of a military pact between
Egypt and Jordan provided evidence of an imminent attack.

See: Resolution 1368 and 1373 which recognize the inherent right
to self-defense with regard to act of terror.

Where a state is contemplating anticipatory self defence the

defensive measure should be proportionate to the pending danger
and all alternative remedies of protection must have been
exhausted.

Following the acts of terrorism committed against the United

States on 11th September 2001, the security council adopted
resolution 1368 (12 September 2001) and 1373 (28 September
2001), in which it recognized the inherent right of self-defense
of states, before proceeding to condemn the terrorist acts in
question. On 7th October 2001, the United States and the United
Kingdom began bombing Afghanistan on the ground that the Taliban
government of that country had allowed Al-Qaeda terrorists to
operate form its territory and thereby made itself a party to
the unlawful use of force against the United Sates. This attack
might be explained in terms of the tradition right of self-
defense. The Taliban government had allowed Al-Qaeda terrorist
to train on its territory and operate form its territory; Al-
Qaeda unlawful acts might therefore be attributed to the
government of Afghanistan; the government of Afghanistan refused
to take action against Al-Qaeda when requested to do so by the

136
United Sates; the United Sates had reason to expect that further
acts of terrorism would be launched against it from the Al-Qaeda
operating from Afghanistan, therefore the United Sates and the
United Kingdom was entitled to act in Self-defense against the
state of Afghanistan.

Two objections may be raised to this new species of self-

defense; firstly, art 51 envisages self-defense by a state
against an armed attack by a state, and not a non-state actor.
Secondly, this form of self-defense is at best preventative
action, and at worst reprisal action. There is little substance
in the first objection. Article 51 does not state that the
„armed attack‟ that gives rise to a right of self-defense must
eminent from a state it may have been so interpreted in the pre-
terrorist era, but there is nothing in art 51 to prevent the
„armed attack‟ from being attributed to a non-state actor. The
second objection is more serious self-defense against terrorism
involves punitive action against terrorist bases or the state
that harbors terrorist after the act of terrorism has occurred
with the intention preventing further such action.

This clearly goes beyond anticipatory self-defense which is

limited to the response to an imminent threatened attack which
cannot be deflected by the other means. For this reason, it is
probably best to see self-defense against terrorism where it
amounts to preventive action against future attacks, as
permissible only with prior Security Council‟s approval –as
happened in the case of the inversion of Afghanistan, which was
preceded by Security Council resolution 1368 and 1373 approving
the exercise of the right of self-defense.

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Defense of Nationals
Customary international law recognizes the right of a state to
use force to protect its nationals abroad. Today this right is
asserted by those who take a broad view of art 51 and denied by
those who see art 51 as excluding the customary-law right. This
is a species of self-defense that lends itself to serious abuse,
as illustrated by the numerous occasions on which the United
Sates has invoked it as a pretext for military interventions in
Latin-America states, including Granada in 198, and Panama in
1989. On the other hand, the fact that a right may be abused
should not result in its denial. That there are circumstances in
which this form of intervention is justified, is illustrated by
the Entebbe incident, in which Israel commandoes intervened
forcibly to rescue Israeli Nationals held hostage by
Palestinian terrorist in Entebbe, Uganda, after their flight
from Tel Aviv to Paris had been hijacked, and Uganda authorities
had failed to secure their release. On this occasion for three
conditions required by customary international law for
intervention were present:
 first, an eminent danger of injury to nationals
 secondly, a failure or inability on the part of the
territorial sovereign (Uganda) to protect the national
and
 thirdly, the measure of protection taken by Israel
where confined to protecting its nationals against
injury.

Humanitarian Intervention
Humanitarian intervention is distinct from protective
intervention in that it involves intervention to protect another
state‟s nationals. In this case the intervening state is not

138
protecting its own interests but instead is playing a more
objective role. It must be noted that humanitarian intervention
is open to being abused in that a state might intervene in order
to promote an ulterior motive. E.g. securing some long term
benefit. The use of humanitarian intervention has received
considerable support for its role in the prevention of serious
violations of human rights.

Collective self defence

The United Nations charter distinguishes between collective
security, which is to be undertaken by the Security Council
acting under Chapter VII, and collective self defence, which may
be exercised by states under art 51 without United Nations
authorization. From this it follows that a state may only assist
an attacked state in collective self defence when the attack, in
its context, also threatens the security- the self- of the
assisting state. If there is no such threat to the assisting
state, it is required to request the Security Council to take
the necessary action under Chapter VII.

Intervention in civil strife and civil wars

(a) intervention where the rebels are not externally assisted
a sovereign independent state is permitted to choose its own
political system and government. Some countries exercise this
choice by means of a ballot, others by means of a bullet. In
either case it is an international affair, in exercise in self-
determination. Other states may not interfere in this process
even if it degenerates into civil war. This is confirmed by the
1970 Declaration on Principles of International Law, which
obliges states not to interfere in civil strife in another
state. Although past state practice appeared to recognise a rule
permitting support by other states for the incumbent government

139
in a civil war, this rule is no longer accepted where the rebels
constitute an organized movement with the political objective of
replacing the government.

Difficulties arise where a state is requested by an incumbent

friendly government to assist in the restoration of law and
order resulting from the disturbance unconnected with the choice
of government or political system. Here there is support for the
view that a state may intervene at the invitation of the
incumbent government.18

(b) Intervention where the rebels are externally assisted

A state may intervene to assist the incumbent government if
rebels are assisted by another state and such support is
sufficiently substantial to amount to an armed attack. In such a
case the intervening state acts in support of the incumbent
government in exercise of the right of collective self defence
against foreign aggression. The post-world war II period has
seen a number of interventions justified on this ground.

Wars of national liberation

Many of the prohibitive rules relating to the use of force have
been relaxed and possibly amended, in wars of self-determination
involving national liberation movements recognised by the United
Nations as were SWAPO, ANC, PAC and PLO. Such wars are no longer
viewed as purely internal civil wars, but as international wars
to which the laws of war are to apply.

18
John Dugard International Law a South African Perspective Third Edition 2005

140
Self defence on the High Seas
A state may interfere with foreign ships on high seas in the
exercise of the right of self defence. Thus a naval vessel may
stop and search a foreign ship on the high seas where it has
reasonable grounds for believing that it is carrying weapons to
rebels in the flag state of the intercepting ship.

See UN Resolution 2627 and 2734.

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UNIT 12
THE PEACEFUL SETTLEMENTOF DISPUTES
ARBITRATION AND JUDICIAL SETTLEMENT

It is a principle of international law that states shall settle

their international disputes by peaceful means. This principle
is reinforced by Art.33 of the UN charter and the Manila
declaration on the peaceful settlement of international
disputes.

A dispute can be defined as a disagreement on a point of law or

fact, a conflict of legal views or of interests between two
states. Disputes relate to an alleged breach of one or more
legal duties. They may also relate to a question of attribution
of title to territory, to maritime zones, to movables or parts
of the cultural heritage of a state.

The majority of inter-state disputes are settled through direct

negotiations between the parties or by third party assistance in
the form of good offices, conciliation or the conduct of fact
finding inquiries. Litigation in international law is very much
a matter of last resort.

A. Charter of the United Nations

The Charter of the United Nations provides in its Chapter I

(Purposes and principles) that the Purposes of the United
Nations are:

"To maintain international peace and security, and to that end:

to take effective collective measures for the prevention and

142
removal of threats to the peace, and for the suppression of acts
of aggression or other breaches of the peace, and to bring about
by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of
international disputes or situations which might lead to a
breach of the peace." (Article 1, paragraph 1).

The Charter also provides in the same Chapter that the

Organization and its Members, in pursuit of the Purposes stated
in Article 1, shall act in accordance with, among others, the
following principle:

"All Members shall settle their international disputes by

peaceful means in such a manner that international peace and
security, and justice, are not endangered" (Article 2, paragraph
3). It furthermore, in Chapter VI (Pacific settlement of
disputes), states that:

"The parties to any dispute, the continuance of which is likely to

endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of
their own choice." (Article 33, paragraph 1)

B. Declarations and resolutions of the General

Assembly
The principle of the peaceful settlement of disputes has been
reaffirmed in a number of General Assembly resolutions,
including resolutions 2627 (XXV) of 24 October 1970, 2734 (XXV)
of 16 December 1970 and 40/9 of 8 November 1985. It is dealt
with comprehensively in the Declaration on Principles of

143
International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United
Nations (resolution 2625 (XXV), annex), in the section entitled
"The principle that States shall settle their international
disputes by peaceful means in such a manner that international
peace and security and justice are not endangered", as well as
in the Manila Declaration on the Peaceful Settlement of
International Disputes (resolution 37/10, annex), in the
Declaration on the Prevention and Removal of Disputes and
Situations Which May Threaten International Peace and Security
and on the Role of the United Nations in this field (resolution
43/51, annex) and in the Declaration on Fact-finding by the
United Nations in the Field of the Maintenance of International
Peace and Security (resolution 46/59, annex).

C. Corollary and related principles

The principle of the peaceful settlement of international
disputes is linked to various other principles of international
law. It may be recalled in this connection that under the
Declaration on Friendly Relations, the principles dealt with in
the Declaration-namely, the principle that States 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; the principle that States shall settle
their international disputes by peaceful means in such a manner
that international peace and security and justice are not
endangered; the principle concerning the duty not to intervene
in matters within the domestic jurisdiction of any State, in
accordance with the Charter; the duty of States to cooperate
with one another in accordance with the Charter; the principle

144
of equal rights and self-determination of peoples; the principle
of sovereign equality of States; and the principle that States
shall fulfill in good faith the obligations assumed by them in
accordance with the Charter-are interrelated in their
interpretation and application and each principle should be
construed in the context of other principles.

The Final Act of the Conference on Security and Cooperation in

Europe, adopted at Helsinki on 1 August 1975, states that all
the principles set forth in the Declaration on Principles
Guiding Relations between Participating

States-i.e., Sovereign equality, respect for the rights inherent

in sovereignty, refraining from the threat or use of force,
inviolability of frontiers; territorial integrity of States,
peaceful settlement of disputes; non-intervention in internal
affairs, respect for human rights and fundamental freedoms,
including the freedom of thought, conscience, religion or
belief, equal rights and self-determination of peoples;
cooperation among States, and fulfillment in good faith of
obligations under international law-" are of primary
significance and, accordingly, they will be equally and
unreservedly applied, each of them being interpreted taking into
account the others."

The links between the principle of the peaceful settlement of

disputes and other specific principles of international law are
highlighted both in the Friendly Relations Declaration and in
the Manila Declaration, as follows:

1. Principle of non-use of force in international relations

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The interrelation between this principle and the principle of
the peaceful settlement of disputes is highlighted in the fourth
preamble paragraph of the Manila Declaration and is also
referred to in section I, paragraph 13, thereof, under which
neither the existence of a dispute nor the failure of a
procedure of peaceful settlement of disputes shall permit the
use of force or threat of force by any of the States parties to
the dispute.

The links between the principle of peaceful settlement of

disputes and the principle of non-use of force are also
highlighted in a number of other international instruments,
including the 1945 Pact of the League of Arab States (art. 5),
the 1948 American Treaty on Pacific Settlement (Pact of Bogota)
(art. I), the 1947 Inter-American Treaty of Reciprocal
Assistance (arts. 1 and 2) and the last paragraph of section II
of the Declaration on Principles Guiding Relations between
Participating States contained in the Final Act of the
Conference on Security and Cooperation in Europe.

2. Principle of non-intervention in the internal or external

affairs of States

The interrelation between this principle and the principle of

the peaceful settlement of disputes is highlighted in the fifth
preamble paragraph of the Manila Declaration.

The links between the principle of peaceful settlement of

disputes and the principle of non-intervention are also
highlighted in article V of the 1948 Pact of Bogota.

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 3. Principle of equal rights and self-determination of
peoples
The links between this principle and the principle of peaceful
settlement of disputes are highlighted in the Manila Declaration
which (1) reaffirms in its eighth preamble paragraph the
principle of equal rights and self-determination as enshrined in
the Charter and referred to in the Friendly Relations
Declaration and in other relevant resolutions of the General
Assembly, (2) stresses in its ninth preambular paragraph the
need for all States to desist from any forcible action which
deprives peoples, particularly peoples under colonial and racist
regimes or other forms of alien domination, of their inalienable
right to self-determination, freedom and independence, (3)
refers in section I, paragraph 12, to the possibility for
parties to a dispute to have recourse to the procedures
mentioned in the Declaration "in order to facilitate the
exercise by the peoples concerned of the right to self-
determination", and (4) declares in its penultimate paragraph
that "nothing in the present Declaration could in any way
prejudice the right to self-determination, freedom and
independence, as derived from the Charter, of peoples forcibly
deprived of that right and referred to in the Declaration on
Principles of International Law concerning Friendly Relations
and Cooperation among States in accordance with the Charter of
the United Nations, particularly peoples under colonial or
racist regimes or other forms of alien domination, nor the right
of these peoples to struggle to that end and to seek and receive
support, in accordance with the principles of the Charter and in
conformity with the above-mentioned Declaration".

4. Principle of the sovereign equality of States

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The links between this principle and the principle of the
peaceful settlement of disputes are highlighted in the fifth
paragraph of the relevant section of the Friendly Relations
Declaration which provides that "International disputes shall be
settled on the basis of the sovereign equality of States" as
well as in section I, paragraph 3, of the Manila Declaration.

5. Principles of international law concerning the

sovereignty, independence and territorial integrity of
States

Paragraph 4 of section I of the Manila Declaration enunciates

the duty of States parties to a dispute to continue to observe
in their mutual relations their obligations under the
fundamental principles of international law concerning the
sovereignty, independence and territorial integrity of States.

6. Good faith in international relations

The Manila Declaration enunciates in its section I, paragraph 1,

the duty of States to "act in good faith", with a view to
avoiding disputes among themselves likely to affect friendly
relations among States. Other references to good faith are to be
found in paragraph 5, under which good faith and a spirit of
cooperation are to guide States in their search for an early and
equitable settlement of their disputes; in paragraph 11, which
provides that States shall in accordance with international law
implement in good faith all the provisions of agreements
concluded by them for the settlement of their disputes, in
paragraph 2 of section II, under which Member States shall
fulfill in good faith the obligations assumed by them in
accordance with the Charter of the United Nations; and in one of

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the concluding paragraphs of the Declaration, whereby the
General Assembly urges all States to observe and promote in good
faith the provisions of the Declaration in the peaceful
settlement of their international disputes.

A provision similar to paragraph 5 of section I of the Manila

Declaration is to be found in the third paragraph of section V
of the Declaration on Principles Guiding Relations between
Participating States contained in the Final Act of the
Conference on Security and Cooperation in Europe.

7. Principles of justice and international law

The "principles of international law" are mentioned together

with the principles of justice in Article 1, paragraph 1, of the
Charter under which one of the purposes of the United Nations is
"to bring about, by peaceful means, and in conformity with the
principles of justice and international law, adjustment or
settlement of international disputes or situations which might
lead to a breach of the peace". The principles of international
law are also mentioned jointly with the principles of justice in
section I, paragraph 3, of the Manila Declaration under which
"international disputes shall be settled on the basis of the
sovereign equality of States and in accordance with the
principle of free choice of means in conformity with obligations
under the Charter of the United Nations and with the principles
of justice and international law."

Paragraph 4 of section I of the Manila Declaration provides that

"States parties to a dispute shall continue to observe in their
mutual relations ... generally recognized principles and rules
of contemporary international law."

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"Justice" is referred to in Article 2, paragraph 3, of the
Charter and in the first paragraph of the relevant section of
the Friendly Relations Declaration, both of which provide for
the settlement of international disputes "by peaceful means in
such a manner that international peace and security and justice
are not endangered."

8. Other corollary and related principles and rules

In its tenth preambular paragraph, the Manila Declaration

singles out "respective principles and rules concerning the
peaceful settlement of international disputes", "the exhaustion
of local remedies whenever applicable". Article VII of the 1948
Pact of Bogoti contains a similar provision.

D. Free choice of means

The principle of free choice of means is laid down in Article

33, paragraph 1, of the Charter of the United Nations and
reiterated in the fifth paragraph of the relevant section of the
Friendly Relations Declaration and in section I, paragraphs 3
and 10, of the Manila Declaration. As indicated above, both the
Friendly Relations Declaration and the Manila Declaration make
it clear that recourse to, or acceptance of, a settlement
procedure freely agreed to with regard to existing or future
disputes shall not be regarded as incompatible with the
sovereign equality of States. The principle of free choice of
means has also found expression in a number of other
international instruments, including the Pact of Bogota (art.
III) and the Declaration on Principles Guiding Relations between
Participating States, contained in the Final Act of the

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Conference on Security and Cooperation in Europe (third para. of
sect. V).

The following means are listed in Article 33 of the Charter, in

the second paragraph of the relevant section of the Friendly
Relations Declaration and in paragraph 5 of section I of the
Manila Declaration: negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to
regional arrangements or agencies or other peaceful means of the
parties' own choice. Among those "other peaceful means", the
Manila Declaration singles out good offices. Under the Friendly
Relations Declaration (second paragraph of the relevant section)
and the Manila Declaration (para. 5 of sect. I), it is for the
parties to agree on such peaceful means as may be appropriate to
the circumstances and the nature of their dispute.

MEANS OF SETTLEMENT
A. Negotiations and consultations
Referring to negotiation, the International Court of Justice
remarked that "there is no need to insist upon the fundamental
character of this method of settlement". It observed in this
connection, as did its predecessor, the Permanent Court of
International Justice that, unlike other means of settlement,
negotiation which leads to "the direct and friendly settlement
of ... disputes between parties" is universally accepted.
Furthermore, negotiations are usually a prerequisite to resort
to other means of peaceful settlement of disputes. This was
recognized as far as arbitral or judicial proceedings were
concerned by the Permanent Court in the following words: "Before
a dispute can be made the subject of an action at law, its
subject matter should have been clearly defined by diplomatic

151
negotiations." It should be noted that the term "diplomacy" is
used in some treaties, such as the 1949 Revised General Act for
the Pacific Settlement of International Disputes, as a synonym
of "negotiations", as is also the phrase "through the usual
diplomatic channels" as it appears, for instance, in the 1948
Charter of the Organization of American States.

1. Main characteristics
Negotiations
The Manila Declaration on the Peaceful Settlement of
International Disputes highlights flexibility as one of the
characteristics of direct negotiations as a means of peaceful
settlement of disputes (sect. I, para. 10). Negotiation is a
flexible means of peaceful settlement of disputes in several
respects. It can be applied to all kinds of disputes, whether
political, legal or technical. Because, unlike the other means
listed in Article 33 of the Charter, it involves only the States
parties to the dispute, those States can monitor all the phases
of the process from its initiation to its conclusion and conduct
it in the way they deem most appropriate.

Another characteristic of negotiation highlighted by the Manila

Declaration is effectiveness (sect. I, para. 10). Suffice it to
say in this connection that in the reality of international
life, negotiation, as one of the means of peaceful settlement of
disputes, is most often resorted to by States for solving
contentious issues and that, while it is not always successful,
it does solve the majority of disputes.

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Consultations
Consultations may be considered as a variety of negotiations.
While they are not mentioned in Article 33 of the Charter, they
are provided for in a growing number of treaties as a means of
settling disputes arising from the interpretation or application
of the treaty concerned. Mention may be made in this connection
of article 84 of the 1975 Convention on the Representation of
States in their Relations with International Organizations of a
Universal Character, which provides for the holding of
consultations at the request of any of the parties, as well as
of article 41 of the 1978 Convention on Succession of States in
Respect of Treaties and article 42 of the 1983 Convention on the
Succession of State Property, Archives and Debts, both of which
provide for "a process of consultation and negotiation".

In other treaties, consultations are provided for as a

preliminary phase in the process of settlement of disputes.
Reference is made in this connection to article XI of the 1959
Antarctic Treaty, article 17 of the 1979 Convention on the
Physical Protection of Nuclear Material and article XXV of the
1980 Convention on the Conservation of Antarctic Marine Living
Resources, which provide, in case of disputes, that the States
parties shall consult among themselves with a view to the
settlement of the dispute by peaceful means.

Exchanges of views
Exchanges of views may also be considered as a form of
consultations. They play an important role in the system
established by the 1982 United Nations Convention on the Law of
the Sea for the peaceful settlement of disputes arising from the
interpretation and application of the Convention.

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Reference is made in this connection to article 283 of the
Convention, which reads as follows:

" 1. When a dispute arises between States Parties concerning the

interpretation or application of this Convention, the parties to
the dispute shall proceed expeditiously to an exchange of views
regarding its settlement by negotiation or other peaceful means.
"2. The parties shall also proceed expeditiously to an exchange
of views where a procedure for the settlement of such a dispute
has been terminated without a settlement or where a settlement
has been reached and the circumstances require consultation
regarding the manner of implementing the settlement."

2. Initial phase
Normally, the negotiating process starts as the result of one
State perceiving the existence of a dispute and inviting another
State to enter into negotiations for its settlement. The start
of the negotiating process is conditional upon the acceptance by
the other State of such an invitation. It may occur that a State
invited to enter into negotiations has valid reasons to believe
that there is no dispute to negotiate and that there is,
therefore, no basis for the opening of negotiations. It may also
occur that a State, while agreeing to enter into negotiations,
subjects the opening of negotiations to conditions unacceptable
to the first State. The discretion of States with respect to the
initiation of the negotiating process is, however, subject to
certain limitations.

A number of treaties place on the States Parties thereto an

obligation to carry out "negotiations", "consultations", or
"exchanges of views" whenever a controversy arises in connection

154
with the treaty concerned. Examples of such treaties are the
1979 Agreement Governing the Activities of States on the Moon
and Other Celestial Bodies (General Assembly resolution 34/68,
annex, art. 15, para. 1), the 1975 Vienna Convention on the
Representation of States in their Relations with International
Organizations of a Universal Character (art. 84), the 1982
United Nations Convention on the Law of the Sea (art. 283, para.
1) and the 1959 Antarctic Treaty (art. VIII, para. 2). Under
some of those treaties, parties to a dispute arising from the
interpretation or application of the treaty are under an
obligation to start the consultation or negotiation process
without delay (see art. 283, para. 1, of the United Nations
Convention on the Law of the Sea; art. 15, para. 2, of the
Agreement Governing the Activities of States on the Moon and
Other Celestial Bodies; and art. VIII, para. 2, of the Antarctic
Treaty).

Furthermore, many treaties providing for peaceful settlement

procedures make resort to the third party means of settlement
envisaged in the treaty conditional upon failure of
negotiations. This approach is to be found in some treaties
specifically concluded for the settlement of all disputes which
may arise among the States parties thereto, such as for example,
the 1949 Revised General Act for the Pacific Settlement of
International Disputes (art. I).

This approach is also to be found in the dispute settlement

clause of many multilateral treaties, such as article 4 of the
1948 Convention on the International Maritime Organization, and
article VIII of the 1969 International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution
Casualties.

155
It should furthermore be pointed out that the setting in motion
of the negotiating process can be encouraged by international
organizations. Aside from the fact that such organizations
provide a meeting place where representatives of States parties
to a dispute can get together and conduct formal or informal
discussions with a view to settling the dispute, organs of an
international organization may contribute to the opening of
negotiations by addressing to the parties recommendations to
that effect.

In the case of the United Nations, the General Assembly may, as

is recalled in section II, paragraph 3 (a), of the Manila
Declaration, "discuss any situation, regardless of origin, which
it deems likely to impair the general welfare or friendly
relations among nations and, subject to Article 12 of the
Charter, recommend measures for its peaceful settlement". The
means of settlement which the General Assembly has most
frequently recommended to the parties to a dispute is
negotiation. Reference is made in this respect to resolution
40/9 of 8 November 1985, in which the Assembly addressed a
solemn appeal to States in conflict to proceed to the settlement
of their disputes by negotiations and other peaceful means.

In addressing such recommendations to the parties, the General

Assembly has often asked them to take account in their
negotiations of specific elements such as the purposes and
principles of the Charter; the objectives of resolution 1514
(XV) of 14 December 1960 (Declaration on theGranting of
Independence to Colonial Countries and Peoples); the interests
of the people concerned; the right to self-determination and
independence; and the principle of national unity and
territorial integrity.

156
In accordance with its responsibilities under the Charter of the
United Nations in the area of peaceful settlement of disputes or
of any situation the continuance of which is likely to endanger
the maintenance of international peace and security, the
Security Council has on a number of occasions adopted
resolutions calling upon States to enter into negotiations.

The furtherance of negotiations between the parties to a dispute

is but a limited aspect of the role which the United Nations and
other international organizations play in the peaceful
settlement of disputes. This role is dealt with comprehensively
in chapter III of the present handbook, as far as the United
Nations is concerned, and in chapter IV, as regards other
international organizations.

It should finally be noted that the parties may be directed to

negotiate by a judicial decision binding upon them. Reference is
made in this connection to the Fisheries Jurisdiction cases, in
which the International Court of Justice stated the following:
“The obligation to negotiate thus flows from the very nature of
the respective rights of the Parties, to direct them to
negotiate is therefore a proper exercise of the judicial
function in this case. This also corresponds to the Principles
and provisions of the Charter of the United Nations concerning
peaceful settlement of disputes. As the Court stated in the
North Sea Continental Shelf cases:

'.. . this obligation merely constitutes a special

application of a principle which underlies all
international relations, and which is moreover
recognized in Article 33 of the Charter of the United
Nations as one of the methods for the peaceful

157
 settlement of international disputes' " (LC.J Reports
1969, p. 47, para.86).

3. Conduct of the negotiating process

(a) Framework of the negotiating process

(i) Bilateral negotiations

Bilateral negotiations are traditionally conducted directly
between duly appointed representatives or delegations or through
written correspondence and have been greatly facilitated in
modern times by the development of telecommunications and means
of transportation. While the negotiators are often ministers of
foreign affairs-or officials of the foreign ministries-of the
parties, practice offers many instances of disputes settled by
specialized negotiators. There are instances where Heads of
State or Government are involved either at the initial stage of
the negotiations-with the process being subsequently conducted
at a lower level-or, conversely, at the concluding stage, after
negotiations have been concluded at the expert level. The
question of the respective ranks of the negotiators may be
relevant to the extent that one side insists that the other side
should be represented at the same level. There are many examples
of bilateral negotiations conducted in the framework of
diplomatic joint commissions, particularly for the settlement of
territorial or waterway disputes.

B. Inquiry
1. Functions and relation to other peaceful means under the
Charter of the United Nations. In an international dispute
involving in particular a difference of opinion on points of

158
fact, the States concerned may agree to initiate an inquiry to
investigate a disputed issue of fact, as well as other aspects
of the dispute, to determine any violations of relevant treaties
or other international commitments alleged by the parties and to
suggest appropriate remedies and adjustments. Inquiry may also
be resorted to when parties to a dispute agree on some other
means of settlement (arbitration, conciliation, regional
arrangements, etc.) and there arises a need for collecting all
necessary information in order to ascertain or elucidate the
facts giving rise to the dispute.

The function of inquiry-investigation or elucidation of a

disputed issue of fact-was comprehensively dealt with in the
1899 and 1907 Hague Conventions2 for the Pacific Settlement of
International Disputes. Article 9 of the 1907 Convention reads
as follows:

In disputes of an international nature involving neither honour

nor essential interests, and arising from a difference of opinion
on points of fact, the Contracting Powers deem it expedient and
desirable that the parties who have not been able to come to an
agreement by means of diplomacy should, as far as circumstances
allow, institute an international commission of inquiry, to
facilitate a solution of these disputes by elucidating the facts
by means of an impartial and conscientious investigation."

Inquiry as a means of settlement of disputes has been provided

for in a number of bilateral and multilateral treaties,
including the Covenant of the League of Nations, the Charter of
the United Nations and the constituent instruments of certain
specialized agencies and other international organizations
within the United Nations system, and in various instruments by

159
the regional bodies. Inquiry, as an impartial third-party
procedure for fact-finding and investigation, may indeed
contribute to a reduction of tension and the prevention of an
international dispute, as distinct from facilitating the
settlement of such a dispute. The possibility of fact-finding
(inquiry) contributing to the prevention of an international
dispute was recognized, for example, by the General Assembly in
its resolution 1967 (XVIII) of 16 December 1963 on the "Question
of methods of fact-finding." In the resolution, the Assembly
stated its belief "that an important contribution to the
peaceful settlement of disputes and to the prevention of such
disputes could be made by providing for impartial fact-finding
within the framework of international organizations and in
bilateral and multinational conventions".

On 18 December 1967, the General Assembly adopted resolution

2329 (XXII), in which it requested the Secretary-General to
prepare a register of experts in legal and other fields, whose
services the States parties to a dispute might, by agreement,
use for fact-finding in relation to a dispute. It also requested
Member States to nominate up to five of their nationals to be
included in such a register;

NEGOTIATION
Negotiation is the primary method used for attaining settlement
of disputes on the international scene, since peaceful
coexistence and conciliation are considered more important than
the characterization of the state as guilty and another as
innocent.

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Obligation to enter into negotiations received judicial support
in the North Sea Continental Shelf Case (ICJR 1969) when the ICJ
declared that:
".... parties are under an obligation to enter into negotiations
with a view to arriving at an agreement. .. "

Many international agreements also require negotiations to be

conducted first before other settlement procedures may be
attempted. Failure of negotiations may lead to the use of other
methods involving the participation of a third party.

Good Offices
Third party (a state, group of states or an eminent individual)
brings disputing parties to the negotiating table and may even
suggest the general framework for producing a settlement.

Good Offices is a variant of mediation. Here a third party

communicates the statements of the disputing parties to one
another. It may also involve the outsider inviting the disputing
parties to a settlement conference or undertaking other steps to
facilitate their communication. This method is a specially
useful in cases where disputing parties do not maintain
diplomatic relations.

Mediation
Here a mediator attempts to reconcile the positions and claims
of the parties. The Mediator is authorized to advance his or her
proposal informally but nothing is binding about the mediator's
role. A Mediator does not undertake an independent
investigation. Proceedings are informal and private, unlike
arbitration or judicial proceedings, with its formal procedures.

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Conciliation
The process of settling a dispute by referring it to a
commission of persons whose task is to elucidate the facts and
endeavoring to bring them to an agreement. Conciliation
commission makes a report containing proposals for a settlement,
but not having the binding character of say a court judgment.

INQUIRY
This is conducted by someone who is not a party to the dispute
who attempts to provide adversaries with an objective
assessment. The primary function of a Commission of inquiry is
to establish the facts pertaining to the dispute by hearing
witnesses or visiting the area where breach of international law
is said to have occurred.

Although the above methods have been used successfully in a

number of disputes, it is only arbitration and judicial
settlement that adjudication is done in accordance with legal
principles and an award made which is accepted as binding on the
contesting parties.

Arbitration
Has been defined 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.78

The only difference between arbitration and judicial settlement

lies in the method of selecting the members of these judicial
organs. In arbitration, this is done by agreement between the
parties, while judicial settlement presupposes existence of a

162
standing tribunal with its own bench of judges and its own rules
of procedure which parties to a dispute must accept.

Arbitration tribunals may consist of a single arbitrator or they

may be collegiate bodies. Where the former is the case, the
arbitrator is sometimes a dignitary e.g. Head of State who may
delegate his responsibility to a person knowledgeable in
international law.

Arbitration presupposes and depends upon the willingness of the

states involved to submit to adjudication and their desire to
reach settlement. A state is not required to submit a dispute to
arbitration. Consent is therefore a prerequisite and can be ad
hoc.

The identity of the arbitrators, formulation of the question to

be submitted to the tribunal, rules of law to be applied and the
time limit within which an award must be made must also be
agreed by the parties. Such issues are spelt out in a special
agreement known as the compromise.

If the tribunal is collegiate, it will usually be a mixed

commission, that is to say, one upon which sit two or more
arbitrators appointed in equal numbers by each of the parties
separately plus an umpire appointed jointly by the parties or by
the arbitrators.

The best known arbitral tribunal has been the Permanent Court of
Arbitration established in 1900 in accordance with the 1899
Hague Convention for the pacific settlement of international
disputes and later, the 1907 convention of the same name. This
institution is still in existence, but it is neither a court nor

163
a permanent institution. It is rather a panel of some 300
persons (4 nominated by each contracting party to the 1899 and
1907 conventions).

It is from this number that states may select one or more

arbitrators to constitute a tribunal for the settlement of a
particular dispute. Only the bureau of the court, which acts as
a registry is permanent. This so called court is essentially a
machinery to call a tribunal into being. Since its inception, 28
cases have been referred to it or conducted with the cooperation
of its bureau. Of these, only 4 have been decided since 1945,
despite efforts to encourage the use of the court.

THE INTERNATIONAL COURT OF JUSTICE

The ICJ is the principle judicial organ of the UN. The statute
of this court is essentially that of its predecessor, the
Permanent Court of International Justice. The court is composed
of 15 members, of whom no two judges may be of the same
nationality. Judges are elected by an absolute majority at
separately and, in theory, simultaneously held meetings of the
Security Council and the General Assembly in accordance with the
procedure outlined in Arts. 4 - 14 of the statute.

Persons eligible for election are those "of high moral

character, who possess the qualifications required in their
respective countries for appointment to the highest judicial
offices, or are juris consults of recognized competence in
international law" (Art. 2 of statute).

Judges are appointed for a 9 year term and may be re-elected. In

order to ensure continuity elections are staggered with five

164
judges being elected every three years. Judges elect from among
themselves the President.

A judge may only be dismissed when he or she is considered no

longer fit to discharge his/her functions, and, only on the
unanimous vote of the other judges.

A judge is not prevented from sitting in a case in which the

state of his/her nationality is a party. However, the rules of
court require a President to refrain from exercising his/her
powers as President in a case involving his/her state.

JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE

The court has both jurisdiction in contentious cases as well as
power to deliver advisory opinions.

Contentious cases - Only states have locus standi and may be

parties n contentious cases before the court" This Article lays
down in general terms the conditions to be fulfilled before the
court can exercise jurisdiction.

Article 35 of the statute read together with Art. 93 of the

charter particularizes the application of the general rule for
different categories of states.

Under Art. 35 of statute of the court shall be open to state

parties to the present statute.

Under Art. 93 (1) of Charter, all UN members are ipso facto

parties to the statute.

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Under Art. 93 (2), a state which is not a member of the UN may
become a party to the statute of ICJ on conditions to be
determined in each case by the General Assembly upon the
recommendation of the Security Council.

It is however, a well-known fact that the fact that a state

meets the above criteria does not make that state subject to the
Jurisdiction of the court in a contentious case. For the court
to be in a position to exercise jurisdiction in a concrete case
in relation to a given state, there has to exist an element of
specific consent on the part of the states concerned that it
should decide that case.

It is that element of specific consent, coupled with

implementation of Article 34 that constitutes jurisdiction
"rationale personae" (locus standl1. In short these are
conditions that must be fulfilled before the court can purport
to exercise jurisdiction at all.

The issue of consent by the parties is a well-established

principle of international law. Reasons for establishment of
this principle are plain and are well summarized by Anand R.P.
in his book, Compulsory jurisdiction of the ICJ (1961) in which
he points out that "when an authority designed to adjudicate
exclusively between states is in question, it is plain that the
source of jurisdiction can only be found in consent by the
parties to resort to the tribunal. There exists no superior
power capable either in fact or in law of creating a
jurisdiction or imposing resort to it.

This point was first discussed by the Permanent Court of

International Justice in the Eastern Carelia status case.80In

166
this case the court stated that "no state can without its
consent, be compelled to submit its dispute with other states
either to mediation or arbitration or to any other kind of
pacific settlement". Thus the jurisdiction of the court is in
actual fact and in law built upon the foundation of consent.

This consent of the parties can be manifested in its extreme

form in two ways.

The first system confers jurisdiction on the court by a special

agreement or ad hoc agreement which is reached after the dispute
has arisen. The second system confers jurisdiction in disputes
that may arise in future.

The latter system can be divided into two reference in treaties,

and declarations or what is conveniently but not accurately
known as "compulsory jurisdiction".

Special Agreement
The court's jurisdiction based on special agreement is provided
for under article 36(1) of the Statute of the ICJ which states
that, "the jurisdiction of the court comprises all cases which
the parties refer to it. .... " Historically international
adjudication furnished a number of instances, of which the
Alabama Claims Arbitration and the British Guiana-Venezuela
Boundary Arbitration are perhaps the best examples, of cases in
which the submission of a matter for adjudication has been
facilitated by agreement between the parties determining the
basis on which a matter was to be adjudicated. The Island of
Palmas Arbitration illustrates how the arbitrator has been
limited by the "compromise" to pronouncing between certain

167
specified possible solutions of a territorial dispute. In 1953
the International Court of Justice was requested by the parties
to determine which of them had pronounced the more convincing
proof" In this case, the court entirely complied with the
request of the parties showing that under a prior agreement, the
states parties to a dispute can seize the jurisdiction of the
court.

All the above illustrations convey a notion of a special

agreement between the parties to a dispute before they seek the
contentions jurisdiction of the I.C.J. This shows that, as in
the traditional arbitration, a form of "compromise" might be
agreed upon where jurisdiction rests essentially on a special or
ad hoc agreement. To this extent, Bowett correctly contends that
"the jurisdiction of the court rests on the parties. As article
36 (i) states, it comprises all cases which the parties refer to
it....”

The notion of a "special agreement" implies that the state is

willing or gives its consent to be bound by the decision of the
court. In other words, without the consent of the states
concerned, no international judicial organ is competent to
adjudicate upon the merits of a dispute between states. Thus, as
Schwarzenegger asserts

"In the absence of consent or acquiescence, it (the sovereign

state) is under no legal obligation to submit disputes with other
sovereign states to procedures for the pacific settlement of
international disputes or to agree to changes in the existing
international status quo.”

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Under the statute of the International Court of Justice, the
consent of the parties to the court's contentious jurisdiction
can be express, tacit or inferred from the acts of the parties
that is to say, there is no special form under which the consent
of the state parties should be conveyed to the court. In the
Corfu channel Case, 84 a letter to the court's registrar written
by the Albanian Deputy Minister for Foreign Affairs' was
considered to be a sufficient expression of consent by Albania.
Bowett, notes that" since nothing in the statute requires
consent to be given by both parties before an application to the
court can be made, it is possible for a prorogated jurisdiction
to exist. In such a case the court is seized with a unilateral
application to which the other party pleads on the merits,
without contesting the Jurisdiction. This type of consent, as
was shown in the Minority Schools cases is treated as an
acceptance of the jurisdiction, rather like an estoppel by
conduct.

If one looks at the two above quoted cases, it will be seen that
the approach as regards the Court's jurisdiction based on a
special agreement has been the same in both the Permanent Court
of International Justice and its successor, the International
Court of Justice. In the Minority Schools case, the German
government, on January 2, 1928 filed an application with the
Court (P.C.I.J) asking for a judgment interpreting certain
articles of the German-Polish Convention of May 15, 1922,
relating to Upper Silesia. The Government had previously
announced to the Council of the League of nations its intention
to make this application; the matter had been before the
Council, but in its resolutions of March 12, 1927, and December
8, 1927 the Council had not attempted to give a legal
interpretation of the treaty provision in question. The urgency

169
of the matter led to prompt action. In the written proceedings
on March 10, 1928 Germany filed a case and a reply, and Poland a
counter - case and a rejoinder. Hearings of the German and
Polish representatives were held in March 1928. Judgment was
given and the court had the following to say:

"The court's jurisdiction depends on the will of the parties. The

court is always competent once the latter have accepted its
jurisdiction, since there is no dispute which states entitled to
appear before the court cannot refer to it. Article 36 of the
statute, in its first paragraph, establishes this principle. This
principle only becomes in operative in those exceptional cases in
which the dispute which states might desire to refer to the Court
would fall within the exclusive jurisdiction reserved to some
other authority."

All the above examples merely show that the Court can be seized
with jurisdiction by an agreement between the parties. But as we
notice from Article 36(1) of the statute of the court, there is
nothing to indicate in what form such agreements should be. It
is perhaps worthwhile to mention that there are three deliberate
omissions from the statute and the rules of the court. First
neither of those texts requires in the case of proceedings
instituted by application, that the consent of the respondent
state should be transmitted to the court with the application.
Second, there is no provision regulating the manner in which the
consent of the respondent state should be expressed. Third,
there is no indication describing in as many words when
proceedings should be instituted by special agreement and when
by application. Thus in the Mavronmmatis case, Greece instituted
proceedings against the United Kingdom by application by virtue

170
of a treaty or convention in force, namely the mandate for
Palestine.

However, the application also related I part to the treaty of

Lausanne which, at the time of the filling of the application,
was not yet in force. To that extent the application was
defective and the respondent State filed a preliminary objection
to the jurisdiction of the court. Before this judgment was
given, the treaty of Luasanne came into force in relation to the
two litigating parties. The court recognized that this fact
though extraneous to the proceedings, perfected its
jurisdiction. The court recognized further that even though the
application had been premature because the treaty of Lausanne
had not been ratified at the time of its submission, this defect
was made good by the subsequent deposit of the necessary
ratifications. In the latter case on the merits the court seems
to have deducted what might be termed an implied agreement when
it says:

"It is not by reason of the jurisdiction conferred on "the court

under' Art. 26 of the mandate (for Palestine), but in consequence
of an agreement between the parties resulting from the written
proceeding, that the court has jurisdiction......"

The Mavrommatis (preliminary objection) case therefore, seems to

have clearly established a principle that a formal agreement
conferring jurisdiction upon the court can be made at any time
up to the conclusion of the hearing.

Jurisdiction can also be conferred upon the court by an informal

agreement between the parties reached by successive acts. In
this instance, although the proceedings will have been

171
introduced by application it will be on the same footing with
proceedings introduced by special agreement in which the court
will have agreed to a proposition by the parties that the
procedure should be that appropriate to a case introduced by
application. The foundation upon which this proposition seems to
be based is to Mavrommatis(merit) case and the Minority Schools
case and many others. Thus for example, in the Corfu Channel
case (preliminary objection), the successive acts were the
application followed by a letter to the court, not being one of
the formal documents of the written proceedings from the Deputy
Minister of Foreign Affairs of Albania, in which the respondent
state indicated that notwithstanding certain irregularities it
was prepared to appear before the court in the case. The court
held the contents of this letter to have perfected the
jurisdiction of the court. This decision goes to show that while
the consent of the parties confer jurisdiction to the court,
neither the statute nor the rules of the court require or
prescribe the form in which it should be expressed.

Another proposition that has arisen out of the above decision is

that jurisdiction may be conferred upon the court by tacit
consent of the parties - and this point was well summarized in
the Haya de la Torre case where it was stated that:

"The parties have in the present case consented to the

jurisdiction of the court. All the questions submitted to it have
been argued by them on the merits, and no objection has been made
to a decision on the merits. This conduct of the parties is
sufficient to confer jurisdiction to the Court."

There are, it must be admitted certain advantages and

disadvantages of this notion of special agreement. The advantage

172
of the court's jurisdiction being based on special agreement
seems to be that, since adjudication on the basis agreed upon
between parties is a possible method of securing the submission
for adjudication of matters not covered by the existing
compulsory jurisdiction of an international court......... When
the parties would otherwise be reluctant to submit because the
relevant law is too uncertain to command their confidence; such
a device may have a significant contribution to make to the
progress of international adjudication.

The disadvantage which arise out of the court's jurisdiction

being based on special agreement is as Jenks observes, that it
"eliminates in advance what the court might, if its judicial
freedom in the matter remained unfettered, regard as the right
decision. It is normally the duty of the court and not of the
parties, to lay down the law; an agreement between the parties
imposing the Court a choice between specified alternatives seems
to be inconsistent with" right and duty of the court under
article 38 of its statute to apply the sources of the law set
forth therein. This critical approach to the Courts jurisdiction
based on special agreement is also held by Hudson, who says:

"If proceedings are begun under special agreement, that

instrument may set forth rules of law which the parties have
agreed upon as applicable to the case, or it may provide how a
particular rule of law is not to be applied”

The other criticism leveled against the court's jurisdiction

based on special agreement is in relations to third parties.
Generally, an agreement between the parties determining the
basis on which a matter is to be adjudicated will be ineffective
in relation to third parties. This general statement follows

173
from the, provisions of Article 59 of the Court's statute which
states that a decision of the' ICJ

"has no binding force except between the parties", and article 94

of the Charter which, states that the undertaking given by the
members of the UN to comply with the decision of the I.C.J
applies only to cases which they are parties to. However, it
should also be observed that if the court finds that the third
party claims are the essence of the matter, it can dismiss the
case before it on the ground that the necessary parties to a
properly constituted action are not before it, in the matter
suggested by Sir Arnold McNair in the Monetary Gold Case."

It might have misleadingly appeared from the above that parties

seeking the Court's jurisdiction under a special agreement can
enter into such as agreement whenever they feel like doing so.
However, they are some limitations on the freedom of the
parties. It is common sense that in circumstances where the
parties are already bound, both as between themselves and
towards other states, by an obligation to submit a matter for
compulsory adjudication,.... they clearly cannot, in relation to
other states, subtract from their existing obligation by
agreeing to refer a matter for adjudication on some special
basis." The question may arise in such circumstances as in
multi-partite instruments to which a large number of states are
parties and which might contain a compulsory jurisdiction
clause. Any interpretation of such instruments would
unjustifiably affect the interest of the other parties if it is
done on the basis of a special agreement between a group of
those states.

174
The second limitation seems to be that although the parties can
acquiesce to the Court's jurisdiction based on special agreement
in any form they cannot, however, change the procedural
provisions of the statute under which the court is established.
This means that when the parties have recourse to the court, any
special agreement they may enter into must comply with the
limits of what is permitted by the constituent instrument of the
court as regards procedure. The Permanent Court of International
Justice gave a clear Zones Case, that, ''The Court cannot, on
the proposal of the parties depart from the terms of the
statute.

Reference to Treaties
It is possible for parties to come to an agreement that whenever
and at such a time when a dispute arises as between them, the
court should be seized with jurisdiction over such a dispute.
Such kind of agreement is mainly to be found in treaties, and
consequently this second part of the will be devoted to a
discussion of the ICJ's jurisdiction based on reference in
treaties.

The statutory basis for jurisdiction based on reference to

treaties is Article 36 (1) of the statute of court which states
that:

The jurisdiction of the court comprises all cases which the

parties refer to it and all matters specially provided for the
charter of the statute of court which states that:

"The jurisdiction of the court comprises all cases which the

parties refer to it and all matters specifically provided for in
the charter of the UN or in treaties or conventions in force."

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The inference is that the parties to a dispute may refer any
case to the court if they want a judicial decision on it, and
any treaty may specifically provide for the jurisdiction of the
court over any matter. In both cases, the Court's jurisdiction
is the product of the consent of the parties.

The expression "treaties and conventions in force" was

interpreted by the Permanent Court in the Polish Upper Silesia
case as meaning treaties in force on the date of the institution
of the proceedings. On this point, Rosenne, S., observed that:

"no equivalent decision appears to have been made by the present

court and it is not clear that the current wording of Article 35
(2) of the statute and Article 36 of the rules of court would
permit so broad an interpretation."

The usual method of conferring jurisdiction under this head is

by a compromissary clause in a multilateral or bilateral treaty.
The treaty, it seems, may provide for reference of a given
dispute to the court or may be a treaty regulating some other
topic and containing a compromissary clause or may be a general
treaty of peaceful settlement of disputes. The effect of such a
provision is to establish the jurisdiction of the Court, as
between the parties but only to the extent specified in the
compromissary clause. As Rosenne points out, "This device also
had its origin in arbitration, but the permanence of the
international court since 1922 has enabled it to make headway,
and there are now hundreds of sets of jurisdictional obligations
of this character - bilateral and multilateral in force between
states.

176
There are, however relatively few cases decided by the court on
this basis despite the great number of treaties that refer
disputes to the court. The South West African case (preliminary
objections) came under this heading. The proceedings in this
case were instituted by Ethiopia and Liberia against the
Republic of South Africa. To found the jurisdiction of the Court
in the proceedings thus instituted, the applicants having regard
to Article 80(1) of the charter of the United Nations relied on
Article 7 of the Mandate for German South West Africa.

To this, the Republic of South West Africa filed a preliminary

objection that the two applicants had no locus standi and that
the court had "no jurisdiction to hear of adjudicate upon, the
questions of law and fact raised in the applications and
memorials"

South Africa contended that the court had no jurisdiction, more

particularly because by reason of the dissolution of the League
of Nations, the mandate for South West Africa was no longer a
treaty or convention in force within the meaning of article 37
of the statute of court. What South Africa was saying, in effect
is that the court could not base its jurisdiction on reference
to the mandate for South West Africa because that mandate could
not be regarded as a treaty in force due to the fact the League
of Nations to which all the disputes that arose from the mandate
were to be referred had since been dissolved.

On this first preliminary objection to the jurisdiction of the

court, the court after reviewing the history of the mandate,
concluded that:

177
 "The mandate, in fact and in law, is an international agreement
having the character of a treaty or convention"

The court further added that the Mandate for South West Africa
like all other mandates was a special instrument having the
character of a treaty or convention. After the Court found out
that the Mandate for south West Africa was a treaty or
convention, the next question was whether this treaty or
convention was still in force. The court argued that the League
of Nations in ending its own existence did not terminate the
mandates but that it definitely intended to continue them by its
resolution of 18th April 1946. Concluding its findings on this
first preliminary objection the court observed that, "though the
league of Nations and the permanent court of international
justice have both ceased to exist, the obligation of the
Respondent to submit to the compulsory jurisdiction of that
court was effectively transferred to this court before the
dissolution of the league." The court therefore, declared, after
considering the two other preliminary objections that it had
jurisdiction on basis of the Mandate.

Another case where a similar issue was discussed the case

concerning the Northern Camercon's'" and it related to the
failure of the United Kingdom to respect certain obligations
directly or indirectly flowing from the Trusteeship Agreement
for the territory of the Cameroons. To found the jurisdiction of
the court the Cameroons relied on Article 19 of the Trusteeship
agreement. The United Kingdom on the other hand put a
preliminary objection that the court had no jurisdiction over
the case.

178
The court after reviewing the history of the Trusteeship
agreement refused to exercise its jurisdiction though it seems
by implication that it recognized that the Trusteeship agreement
gave it jurisdiction over the matter. The court cited the
Nottebohm case which stated that:

"It is the act of the applicant which seizes the court but even
if the court when seized finds that it has jurisdiction, the
court is not compelled in every case to exercise that
jurisdiction."

Another case cited was the Free Zone Case which stated that:
The court cannot as a general rule be compelled to choose
between constructions (of a treaty) determined beforehand none
of which may correspond to the opinion at which it Thus the
court on the Cameroons case was of the opinion that though it
had jurisdiction over the case on the basis of the Trusteeship
Agreement, it would be inconsistent with its nature as a court
to exercise that jurisdiction because the breach of the
agreement over which it was asked to adjudicate and been finally
consummated and it was physically impossible to undo the past.
The court went on to point out that the applicant state was no
longer, in a position to ask the court for more than a finding
with force of re judicata, that the Trusteeship Agreement had
not been respected by the Administrating power. In addition the
court was of the view that the violations referred to have been
finally consummated, and the Republic of Cameroon can - not ask
for restitution in integrum having the effect of non-occurrence
of the Union with Nigeria and non-division of the territory.

The two cases above clearly show that it is possible to seize

the court with jurisdiction by reference to a treaty since a

179
treaty usually contains agreement or consent between two parties
reached before a dispute arises to the effect that when and if a
dispute arises such a dispute as between them should be reformed
to the Court for adjudication.

COMPULSORY JURISDICTION (OPTIONAL CLAUSE)

As it has been pointed out earlier on in the paper, the source
of jurisdiction of the International Court of Justice is to be
found in consent by the parties. Upon the foundation of this
consent two systems of jurisdiction emerge: one system limits
jurisdiction to particular disputes submitted to the tribunal by
an agreement made ad hoc after the dispute has arisen or agreed
in a treaty to the court certain disputes arising out of the
treaty on a future date. This system has been discussed supra
under the headings, special agreement and reference to treaties.
The other system is whereby a number of states agree to confer
jurisdic the instance of either party to the dispute and this
system will form the basis of the discussion on the remaining
part of the paper.

Anand, contends that this system is conveniently but not very

accurately known as compulsory jurisdiction. Article 36 (2) of
the court's statute provides for this kind of jurisdiction when
it says that the parties to the statute may recognize as
compulsory ipso facto and without special agreement, in relation
to any other state accepting the same obligation, the
jurisdiction of the court in all legal disputes. It should be
noted, however, that merely by being a party to the statute, a
state cannot be said to have given jurisdiction to the court.

180
Such jurisdiction can only be founded when the disputants have
submitted a dispute to the court. Thus Anand could not have been
far from the truth when he says "the acceptance of the statute
means nothing more than consent by a state that the court may
exercise the jurisdiction which may be conferred upon it in
accordance with statute." Indeed, it can be argued that a party
to the statute is not bound by its acceptance of the statute to
make any use of the court or submit to the court's exercise of
contentious jurisdiction. For it to be bound there must be a
further act of submission which may be made by an agreement to
submit future disputes, or by an ad hoc copromis (special
agreement) in respect of a dispute already arisen. It is upon
this argument that Anand and even Kelsen contend that the
jurisdiction conferred under article 36 (2) is not compulsory
jurisdiction in the true sense of the word. Kelsen says, "in
order to establish the true compulsory jurisdiction of the ICJ,
the statute would have to provide that any member of the
judicial community, party to any case whatever, is obliged to
recognize the jurisdiction of the court if the other party
refers the dispute to the court. But it provided only for the
possibility of entering into agreement for the establishment.

Historically, this notion of the so called compulsory

jurisdiction emerged with a view of extending the rule of law in
the life of nations by assuring in advance of a controversy that
states will permit the settlement of their disputes by the
court. If the position had been different, there would have
arisen, for example, an important controversy of a nature to
disturb the peace and heighten the feeling of states and to
expect states to reach agreement at such a point, to refer the
dispute to the court would be to live in a dreamland.

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The so called compulsory jurisdiction can only best be
understood against the background of the development of
obligatory (or compulsory) arbitration, that is to say
arbitration taking place as a result of prior obligations
assumed by states to arbitrate all or certain classes of
disputes that might arise in future. Its history goes back to
the Hague conference of 1907 when all the forty-four states
present unanimously declared that: they accepted the principle
of obligatory jurisdiction, and secondly, that certain disputes
especially those which related to the interpretation and
application of international agreements should be submitted to
obligatory jurisdiction without any limitation whatever.

The creation of the permanent Court of Arbitration, opened the

way for further advancement of the notion of compulsory
jurisdiction. The committee of jurists charged with the creation
of the Permanent Court of Arbitration in 1907 wanted the notion
of a compulsory jurisdiction to be firmly established. But the
Council of the League was not in agreement with the committee of
Jurists and it contended that, "the jurisdiction of the court
must be limited to such matters only as the parties might choose
to submit to it, "because the council believed that "the matter
was already determined by Article 14 of the covenant" which
provide -"the court shall be competent to hear and determine any
dispute of an international character which the parties thereto
to submit to it." With this objection from the council of the
League the question of compulsory jurisdiction fell on the way
side.

Later in 1945, the San Fancisco Conference deliberating on a

draft charter for the United Nations, also failed to adopt the
principle of general compulsory jurisdiction and it contended

182
itself by adopting the same old compromise of the previous
statute. But at this point it was at least recognized that the
ICJ had a limited compulsory jurisdiction and it was left to
various states to declare their acceptance of the court's
jurisdiction.

The most usual way in which the state may accept the
jurisdiction of the court is by making a declaration under
Article 36 (2) of the statute of the International Court of
Justice which provides that:

"The states parties to the present statute may at any time

declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other state accepting the
same Obligation, the jurisdiction of the court in all legal
disputes ....”

This provision which is generally, but not very accurately known

as the "optional clause" was, as we have seen, introduced as a
compromise between the views of the 1920 jurists and the Council
of the League and was retained by the San Francisco Conference.
This kind of compromise was aimed at encouraging and
facilitating the making of declarations by providing a framework
within which a member state might cast the limitations which it
desired.

A declaration under this clause undoubtedly constitutes an

international engagement binding on the state concerned in
relation to any state also making a declaration under the
optional clause. And despite the fact that a declaration is '
usually a unilateral act - entirely in the declaration of a
state, "it results into a bilateral agreement when a dispute is

183
concretized by the filing of an application before the court."
Assuming that one state has made a declaration, there arises.
another question as to the legal nature of such declarations,
This issue was first' discussed by the Permanent Court of
International Justice in two cases; Phosphates in Morocco
(Preliminary objection) and Electricity Company of.. Sophia and
Bulgaria (preliminary objection). In both the two cases, the
court emphasized the reciprocal nature of the obligations
resulting from the declarations made under the optional clause.
Again in the International Court of justice the court declared
that the consensual bond forms the foundation of the optional
clause." This view of the ICJ was expressed in the Right of
Passage over Indian Territory.

Here the court declared that "the contractual relation between

the parties and the compulsory jurisdiction of the court
resulting there from are established by the fact of the making
of the declaration.' Judge chagla, pointed out in this case that
the mere deposit of a declaration by a state and nothing else,
brings about the consensual bond between the declarant and the
state which has accepted the same obligation." But the issue of
entry into force of these declarations is not as simple as judge
ad hoc Chagla seems to imply.

The issue of entry into force of declarations can best be

understood by first of all referring to Article 36(4) which lays
down that such declaration, "shall be deposited with the
Secretary General of the United Nations, who shall transmit
copies thereof to the parties to the statute and to the
Registrar of the court."

184
Declarations made by states, not parties to the statute are
deposited with the Registrar of the court under the Security
Council resolution of October 15. 1946.

Thus in the case of the Right of Passage over Indian Territory,

the court declared that it is only by the deposit of its
declaration with the Secretary General that the accepting state
becomes a party to the system of the optional clause in relation
to the other states. This view seems to have support in Article
102 of the Charter which says that. "no party to any such treaty
or international agreement which has been registered in
accordance with paragraph 1 of this article may invoke that
treaty or agreement before any organ of the United Nations." It
is a well-known that the declarations under the "optional
clause" fall within the term treaty and since the court is an
organ of the United Nations it is only natural to assume that
these declarations are only valid after they have been deposited
with the Secretary General.

But as argument was advanced in the Rights of Passage over

Indian territory as to whether it was sufficient to deposit a
declaration with the Secretary General or that sufficient time
as would be reasonable to permit him to transmit copies thereof
to the parties to the statute and Registrar of the court was to
be allowed. In this case Portugal deposited a declaration
accepting the compulsory jurisdiction of the court with the
Secretary General on 19 November 1995. On December 22 Portugal
filed in the court an application instituting proceedings
against India about certain rights of passage over Indian
territory. On December 30, the Government of India received a
copy of the Portuguese declaration and this copy was officially
transmitted to the government of India by the Secretary General

185
on January 19. 1956. The government of India contended that, as
the Portuguese application was filed before the lapse of such
time as is the normal course of events would have enabled the
Secretary-General to compliance with Article 36(4), transmit
copies of the Portuguese declaration to the other parties to the
statute, the filing of the application violated the equality,
mutuality and reciprocity to which India was entitled under the
optional clause and under the express condition of reciprocity
contained in its own declaration of 1940, "and consequently the
conditions did not as yet exist to entitle Portugal to file the
application.

It claimed that Article 36 required not only the deposit of the

declaration of acceptance with the Secretary General but also
its transmission to the other parties to the statute and that
the declaration did not become effective until the latter
obligation had been discharged. This Indian contention was
rejected by the court which declared that the deposit of the
declaration with the Secretary General is all that brings the
accepting state into the system of the optional clause.

We have seen that the declaration comes into force as soon as it

is deposited with the Secretary General to the united Nations;
and it is now time to discuss the form in which this declaration
is made.

It is recognized that no particular form is prescribed for the

making of these declarations. Thus in some cases the text of
declarations repeat the whole or in part the text of Article
36(2), but most declarations make reservations in some cases so
many that it is doubtful whether "compulsory jurisdiction" was
over accepted. There are other declarations such as paragraph

186
eight of the United Kingdom's declaration which impose a
condition of reciprocity - in other words the U.K declaration
accepts the compulsory jurisdiction but on condition of
reciprocity is provided for under article 36 (3) which says,
"such declarations .... May be made unconditionally or on
condition of reciprocity ..."

It is clear that the state which has accepted the jurisdiction

of the court under article 36 (2), is only bound towards other
states which have also undertaken this obligation. But is this
to say that a declaring state is bound only in relation to such
governments or states as have made exactly the same declarations
and reservations? It must be admitted here that taken literally,
the words "accepting the same obligation" might seem to imply
that one state is bound to another, under the optional clause
only when the obligations assumed in their respective
declarations are exactly, or at least broadly the same. But such
an interpretation would obviously have been highly prejudicial
to the development of compulsory jurisdiction in view of the
number and variety of the limitations, conditions and.
reservations which have in fact been inserted by many states in
their declarations.

The effect of such an interpretation would have been, as Anand

says, "to divide the states adhering to the optional clause into
small groups whose members had made the same or similar
declarations, and to make the members of each group bound inter
se to accept the court's compulsory jurisdiction, but not bound
to accept it at all in relation to members of any other group
with declarations having somewhat different terms. With Anand's
view I mind no one can doubt that, a few states having made
limitations or reservation peculiar to themselves, would have

187
adhered to the optional clause and yet have been liable to
compulsory jurisdiction at the suit of any other state,
consequent' shaking the very foundation of the system. That the
optional clause have such a disastrous effect was clearly not
intended and consequently the "condition of reciprocity"
contained in the optional clause has been interpreted in a quite
different way.

The words "in relation to any other state accepting the same
obligation" means as the court said in the Right of Passage over
Indian Territory, that,

"as between states adhering to the optional clause each and all
of them are bound by such identical obligations as may exist at
any time during which the acceptance is mutually binding."

As it can be seen from the court's statement, the words have not
been treated as laying down a condition that exactly, or even
broadly, the same obligations of compulsory jurisdiction must
have been accepted by each state. The words have rather been
interpreted as required that there shall be complete reciprocity
in the operation of compulsory jurisdiction under the optional
clause as between two states which have accepted the obligation
in different terms. This merely means that two states can be
bound inter se even though their obligations are not in all
respects co-extensive, but they will be bound only to the extent
that they have accepted the same jurisdiction. An applicant
state may therefore rely upon a responded state's declaration,
but only within the limitations set by the applicant's own
declaration. The Court‟s jurisdiction applies only to the common
ground covered by the applicant's and respondent's declarations.
What the whole thing amounts to is that, if state A, has

188
accepted jurisdiction with reservations a, b, c, it could rely
not only on those reservations but also upon those made by other
signatories. This means that if there is state B. which has made
reservations d, e, f, it would mean in consequence that states A
and B could both reciprocally rely on all of these six
reservations.

The first case in which reciprocity in relation to conditions

and reservations was discussed is the Phosphates in Morocco case
101 between Italy and France. The court said with reference of a
difference between the French and Italian limitations in the
declarations:

Nevertheless, as a consequence of the condition of reciprocity

stipulated in Article 36(2) of the statute of the court, it is
recognized that this limitation holds good as between the
parties."

In another case - The Anglo-Iranian Oil Co. case the ICJ

referring to the common ground applicable pointed out that:

"By these declarations jurisdiction is conferred on the court to

the extent to which the two declarations coincide in conferring
it. As the Iranian declaration is more limited in scope than the
U.K. declaration, it is the Iranian declaration on which the
court was to base itself. This is the common ground between
them."

Again in the certain Norwegian Loans Case, the court expressly

declared that

"since two unilateral declarations are involve, such jurisdiction

is conferred upon the court only to the extent to which the

189
 declarations coincide in conferring it. A comparison between the
two declaration 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 reservation."

From the pronouncements of the court in the three above cited

cases, it has come to be established that the condition of
reciprocity means at least two things. First, if compulsory
jurisdiction under the optional clause is to apply to a
particular dispute, both states must have made a declaration
which compromises that dispute within its scope. Second, as a
corollary, it also means that a party to a dispute whose own
declaration comprises that dispute within its scope is always
entitled to invoke a reservation or limitation in its opponent's
declaration for the purpose of excluding the particular dispute
from the application of the optional clause.

The last point one needs to discuss in relation to declarations

is the question of the time limit. The authority given in
Article 36 (3), that a declaration may be made "for a certain
time," has been interpreted by states as giving them complete
freedom in limiting the duration of their declarations. Most
states have set a variety of time limits - some have made
declarations for specific periods of let‟s say five on ten years
after which they would renew them or allow them to lapse. Other
states have made their declarations terminable on six or twelve
months' notice to the Secretary General. Other states have
combined the two forms above and have made declarations for a
period of five or ten years and thereafter until notice of
termination is given to the Secretary General.

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The question of time limit was discussed by the ICJ in the
Nottebohm case (Preliminary objection). In this case Guatemala
made a declaration valid for five years from January 1947 and it
was therefore due to expire in 1952. Liechtenstin's declaration
was revocable on 12 months' notice. Five weeks before
Guatemala's declaration was due to expire, Liechtenstein by
application bought a case against Guatemala claiming damages in
respect of various measures which Guatemala had taken against
the person and property of Mr. Nottebohm in contravention of
international law. Guatemala raised a preliminary objection that
the court had no jurisdiction to hear the case against it after
its declaration had expired even though the application might
have been filed during the time of the currency of her
declaration. The Court in answer to this preliminary objection
by Guatemala, declared that, "the optional clause and the
declarations of states thereunder relate to the seizing of the
court with jurisdiction, not to adjudication of the suit." The
court then went on to reject the preliminary objection when it
observed that the declaration relates to seizing the court and
once the court is seized, the subsequent expiry of the
declaration cannot affect its power to adjudicate over the
issue. The question of the time limit of declarations can be
summed up as follows:

„The court‟s jurisdiction is expressed in special agreement,

reference to treaties and by declaration under the optional
clause.‟ In this regard, nothing more can be said than what the
Permanent Court of International Law observed in the Rights of
Minorities in Upper Silesia case. In this case it stated that:

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 “The Courts jurisdiction depends on the parties. The court is
always competent once the latter have accepted its jurisdiction
......”

The question that arises from this observation, is whether once

the will of the parties is expressed in a special agreement,
treaty, or declaration, the court finds its jurisdiction and is
compelled to excise it. For example, in the Nottebhom case, the
court stated that:

“it is the act of the applicant which seizes the court but even
if the court when seized finds that it has jurisdiction the court
is not compelled in every case to exercise that jurisdiction.”

The logical interpretation of the above statement seems to be

that, even when there is a special agreement between the
parties, reference in a treaty, or declaration, the court can
refuse to exercise jurisdiction on various other ground. But do
these other grounds that the court takes into account in
deciding whether to exercise jurisdiction or not, - constitute
new basis of the court‟s jurisdiction extraneous to article 36
of the rest of this paper to show that the court actually has
used additional tests extraneously to those found in article 36
of the statute of the court when dealing with questions of
jurisdiction. The court has used four such test in its
Decisions and advisory opinions, and these are sufficient
interest, effectiveness, existence of a dispute, and that of
international legal personality. A further question that this
paper will attempt to answer is whether by looking at these
extraneous conditions, the court was in effect saying it had
jurisdiction but could not exercise it unless the condition are
fulfilled or whether it was saying it did not have jurisdiction

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until in addition to article 36 of the statute, the other
conditions are also fulfilled:

An examination of the court‟s work, reveals that the court has

refused to adjudicate if one of the following conditions have
not been met – firstly, if any of the parties has no sufficient
interest in the matter, secondly, when the courts‟ decision if
given will not have any effect, thirdly if there is no dispute
in issue, and lastly, if any of the parties has no legal
personality.

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UNIT 13
Human Rights

Today one of the principal aims of international law is the

protection of the human rights of individuals against her or his
own government. This is a post-world war ii development. Before
1945 the concern shown by international law for the treatment of
aliens (described in the previous chapter) did not extend to the
treatment of individuals by their own states. Pre-war
international law provided protection to individuals, other than
aliens lawfully admitted to the injuring state, in limited
situations and circumstances.

Humanitarian law, which seeks to reduce the suffering of

combatants and civilians in time of war, began to develop in the
nineteenth century after the adoption of the Geneva Convention
for the Amelioration of the condition of the wounded in Armies
in the Field in 1864, and was well developed by the beginning of
the 20th century. Humanitarian intervention, which permits states
to intervene forcibly in states whose treatment of their own
nationals shocks the conscience of mankind, was recognized by
the international law as early as the seventeenth century,
although in practice it was used mainly as a pretext for non-
altruistic political intervention. The slave trade was abolished
largely by collective international action.

The league of Nations period saw three important developments in

the international protection of human rights: the mandates
system established in 1919, as a sacred trust of civilization to
promote the welfare for „people not yet able to stand by
themselves under the strenuous conditions of the modern world‟,

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the international Labor Organization, created in 1919, to
improve the working conditions of employees, and the minority
treaties, designed to safeguard the rights of ethnic, religious,
and linguistic minorities in the Balkans and Eastern Europe.

Despite these features of international law aimed at promoting

the welfare of individuals, minorities, and undeveloped peoples,
international law until 1945 was largely concerned with states,
at that stage the only subjects of international law, and with
the relations between states. The prohibition on intervention in
the domestic affairs of states, enshrined in the Convention of
the League of Nations, was respected as a guide principle. It
was this principle which ensured that states failed to intervene
in Germany before 1939 despite awareness of the atrocities
committed by the Nazi regime against their own Nationals.

The enormity of the atrocities committed by the Nazi regime

dramatically changed the nature of international law. This
experience compelled statesmen to accept the need for a new
world order in which the states was no longer free to treat its
own nationals as it pleased. This new order was proclaimed by
the charter of the United Nations, which recognized the
promotion of Human Rights as a principle goal of the new world
organization, and by the London Charter of 1945, which provided
for the trial of the major Nazi war leaders.

The universal declaration of Human Rights

The Universal Declaration of Human Rights is generally agreed to
be the foundation of international human rights law. Adopted in
1948, the UDHR has inspired a rich body of legally binding
international human rights treaties. It continues to be an

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inspiration to us all whether in addressing injustices, in times
of conflicts, in societies suffering repression, and in our
efforts towards achieving universal enjoyment of human rights.

It represents the universal recognition that basic rights and

fundamental freedoms are inherent to all human beings,
inalienable and equally applicable to everyone, and that every
one of us is born free and equal in dignity and rights. Whatever
our nationality, place of residence, gender, national or ethnic
origin, colour, religion, language, or any other status, the
international community on December 10 1948 made a commitment to
upholding dignity and justice for all of us.

African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights (also known as
the Banjul Charter) is an international human rights instrument
that is intended to promote and protect human rights and basic
freedoms in the African continent. Intended to promote and
protect human rights and basic freedoms in the African
continent.

It emerged under the aegis of the Organization of African Unity

(since replaced by the African Union) which, at its 1979
Assembly of Heads of State and Government, adopted a resolution
calling for the creation of a committee of experts to draft a
continent-wide human rights instrument, similar to those that
already existed in Europe (European Convention on Human Rights)
and the Americas (American Convention on Human Rights). This
committee was duly set up, and it produced a draft that was
unanimously approved at the OAU's 1981 Assembly. Pursuant to its
Article 63 (whereby it was to "come into force three months

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after the reception by the Secretary General of the instruments
of ratification or adherence of a simple majority" of the OAU's
member states), the African Charter on Human and Peoples' Rights
came into effect on 21 October 1986– in honor of which 21
October was declared "African Human Rights Day".

Oversight and interpretation of the Charter is the task of the

African Commission on Human and Peoples' Rights, which was set
up in 1987 and is now headquartered in Banjul, Gambia. A
protocol to the Charter was subsequently adopted in 1998 whereby
an African Court on Human and Peoples' Rights was to be created.
The protocol came into effect on 25 January 2005.

In July 2004, the AU Assembly decided that the ACHP would be

incorporated into the African Court of Justice. In July 2005,
the AU Assembly then decided that the ACHP should be
operationalized despite the fact that the protocol establishing
the African Court of Justice had not yet come into effect.
Accordingly, the Eighth Ordinary Session of the Executive
Council of the African Union meeting in Khartoum, Sudan, on 22
January 2006, elected the first judges of the African Court on
Human and Peoples' Rights. The relationship between the newly
created Court and the Commission is yet to be determined.
As of 15 June 2009, 53 countries have ratified the Charter.

Incorporation of socio-economic rights

The African Charter includes civil and political rights as
well as specific economic and social rights. It has not
separated socio-economic rights into a different instrument
like in the European and American system. As to the Universal
Declaration of Human Rights it contains a comparable catalogue

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of rights. For instance, both texts recognize the right to
satisfactory working conditions and to equal pay for equal
(Article 15 of the ACHPR and Articles 23 & 24 of the UNDHR).
Nevertheless, the African Charter is the only one to
incorporate the right of equal access to public property and
services.

The entrenchment of the second generation rights in the ACHPR

should be regarded like a statement by African states that
these rights as well as civil and political rights are
indivisible and independent. In the Preamble, States parties
have stated their conviction that civil and political rights
cannot be dissociated from economic, social and cultural
rights in their conception as well as universality and that
the satisfaction of these latter rights is a guarantee for the
enjoyment of the formers. In such respect, this integrative
African approach must be regarded as a serious argument
against the objection to the justiciability of socio-economic
rights grounded on their alleged difference with civil and
political right. This is what makes Chidi asserting that the
African Charter represents a significantly new and challenging
normative framework for the implementation of economic, social
and cultural rights advocates working in a position to pioneer
imaginative approaches to the realization.

Duties of individual
Another feature of the ACHPR is that it breaks new ground by
including individual duties. It consecrates a whole chapter to
the duties of individuals, although this chapter only consists
of three articles. In Ouguergouz‟s opinion, the concept of
“individual duties” is actually not a feature of African

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society alone. If this view is not wrong, however it is to be
stressed that the approach adopted by the drafters of the
African Charter was different. They believed that the
references in extant international instruments to individual‟s
obligations were so vague as to be meaningless. For this
reason, they attempt to rectify this concern by enumerating
obligations imposed upon individual.

The UDHR also mentions the duties of individual but in very

general terms. At the regional level, the European system does
not provides for such duties while the ACHPR does not ignore
the notion of „individual duties‟, but refers to it only in a
single article formulated so widely that it is not easy to
catch the legal content of duties prescribed. In Elias‟s view,
the African Charter seems to express another feature of the
African conception of human right, whose basis would appear to
be the nature of the several of social organization in
traditional Africa, in which the human person is at the center
of whole raft of rights and obligations. At the time of the
drafting of the Charter, the former President of Senegal, L
Senghor, made a wish that, contrarily to the Europe where
human rights are considered as a body of principles and rules
placed in the hands of the individual, as a weapon, thus
enabling him to defend himself against the group or entity
representing it, the African Charter should be made in
accordance with the African tradition which consists in not
alienating the subordination of the individual of the
community, in coexistence, in giving everyone a certain number
of rights and duties.

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 ‘Claw-back’ Clauses
A „claw-back‟ clause, once again a distinctive feature of the
African Charter, is one that permits, in normal circumstances,
breach of an obligation for a specified number of
reasons. The exercise of most of rights in the ACHPR is
limited ab initio by clause of type: „‟within the law‟‟,
„„provided that individual abides by the law… With regard to
other systems, universal as well as regional, they include
derogation clauses. Derogation clauses are different from
claw-back clauses in that they explicitly provide
circumstances in which rights may be limited and define rights
that are non-derogable and must be respected, even when
derogation is permitted.

The concept of Peoples’ rights

The African Charter has a much stronger focus on the subject
of the rights of peoples. It has the distinction of being the
only international instrument to provide a detailed exposition
of rights of people.

Originality from the Institutional aspects

The enforcement machinery in the African system had long
rested on a single institution which is the African
commission. In that, it was similar to the universal system
whose enforcement is monitoring by the UN Human Rights
Committee, but it departed from the regional systems.
Obviously, the system approved in 1981 by African leaders is
different from the one conceived in 1998 adding the African
Court on Human and People rights beside the Commission. In
this respect, it joined the Inter-American system which have
this couple of institutions but still depart from the European

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one which suppressed the European Commission the very same
year.

Strengths
1. The fact of including civil and political rights as well
as socio-economic rights in a single instrument. It reveals
the adherence of the African states parties to the conception
that socio-economic rights are not different from civil and
political rights and therefore, that they are justiciable.

2. The express prohibition in the African Charter against

discrimination according to ethnic group constitutes a major
step for the continent as a whole because the realization of
this right will lead to greater economic opportunity for those
people not of the same kinship as the head of government.

3. The enforcement machinery involving both the Commission

and the Court. These institutional couples committed to
promote and look after the observance of Human rights in the
region are to be regarded positively if each of them plays its
genuine role without interfering in the area of the other.

4. The wide jurisdiction recognized to the African Court on

Human and Peoples‟ Rights in Article 3(1) of the Protocol to
the ACHPR. The Court can rely not only on the ACPHR and the
Protocol but also on any other relevant Human Rights
instrument ratified by the State concerned. Comparatively to
the Commission, the Jurisdiction of the Court is broadly
defined. Indeed, even if it is mentioned that the Commission
shall draw inspiration from various international law
instruments, its main role is to watch out for the observance

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of the ACHPR. A contrario, the extended jurisdiction of the
Court relates to the subject-matter of cases, and not only to
the use of the instruments as interpretative guides. This has
the positive consequence of enlarging the legal basis of Human
rights protection within the African region.

5. Apart from inter-state communications, article 55 of the

Charter mentions other communications which can be considered
by the commission on certain conditions. Although, there is no
clear indication in this formulation that individual
communications are allowed, the Commission at its 33rd session
has established a procedure for dealing with individual
communications and has considered a number of such
communications and taken decisions on their merits.

Weaknesses
1. The omission of some important human right and the
vagueness in the definition of certain rights protected.
For instance, the Charter does not provide for the right
of the accused to the aid where language is a problem and
for the right to request witness. With regard to the
right of “every human” being to life, the Charter does
not define what should be the meaning of „‟human being”,
thereby leaving the issue of abortion to each state
individual determination.

Furthermore, the enumeration of socio-economic rights is

somewhat limitative. For instance, it does not mention rights
such as the right to form or to join a trade union, the right
to strike, the right to social security …and even some that
are included have not been given a strong contain. An

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illustration can be taken from the right to work which is not
formulated in a way that put upon the state the duty to
provide for jobs. There is merely a reference to equitable and
satisfactory conditions of work and to equal pay for equal
work.

2. The proliferation of claw-back clauses which allow a

state to restrict or infringed the granted right to the extent
permitted by domestic law. As mentioned previously, claw-back
clauses tend to be less precise than derogation clauses
because the restrictions they permit are almost totally
discretionary.

3. The fact that the enforcement of the Charter rights has

long been informed by a philosophy of negotiation and
conciliation rather than the adversial approach associated
with adjudicatory mechanisms. In this respect, the noticeable
weakness is the establishment of an African commission with
the duty to protect and to promote human rights in the region,
but whose powers are in any case somewhat limited in terms of
the Charter. There is no coercive machinery enabling the
Commission to impose performance of its recommendations on the
states concerned. For instance, in the Social and Economic
Rights Action Centre and the Centre for Economic and Social
Rights v. Nigeria, recommendations made by the Commission
since 2001 are yet to be implement. Evans is of the view that
failure of many States to comply with their Charter
obligations and the subsequent arguably lack of reaction by
the Commission can perhaps be explained by the emphasis which
the Commission places upon the element of „dialogue‟ within
the reporting process. However, the Commission has reacted at

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its 24th session through a resolution noting the absence of
compliance by states parties. To remedy to this weakness, an
African Court on Human and Peoples‟ Rights was established in
a recent past under the Protocol to the ACPHR. Such
ideological shift expresses the adherence of states parties to
the alleged efficiency attached to a judicial adjudicatory
system. Nevertheless, it is to be stressed that the benefice
of having an African Court on Human Rights will largely depend
on the willing of states parties to abide with its judgments
that are binding.

Loopholes and escape roads

1. An absence of a clear indication on the binding or non-
character of the ACHPR and then of the African Commission
decisions has enable states parties often to not comply with
their obligations. For instance, states parties have neglected
to submit reports to the African Commission as required at
Article 62.

2. The existence of claw-back clauses allowing states

parties to restrict rights ab initio. To remedy to this
weakness, the African commission, relying on articles 60
and 61 of the ACPHR, has interpreted the Claw-back clauses in
a way that they may only restrict exercise of rights to the
extent permitted by domestic law, provided that it is
consistent with international law minimum standards.

3. The omission of some rights and the vagueness in the

definition of some others has provided an escarpment corridor
to states parties in the fulfilling of their obligation.

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3. Resemblance and the difference between the African and the
European human rights systems

Resemblances

- Both systems provide for a judicial settlement through

a court.
- Both systems require the exhaustion of local remedies
before the case can be admissible.
- Both systems provide for the possibility of a friendly
settlement procedure.
- Both systems provide for a machinery of national
report. However while the European system provides for
reporting system at the request of the secretary general of
the Council of Europe, the ACPHR establishes a permanent
reporting system.
- Both systems provides for amicable settlement.
- Both systems provides for possibility to request
advisory opinions from Courts. However, in the European system
such opinions is limited on legal questions concerning the
interpretation of the Convention and Protocols thereto while
in the African system such opinions may be provided on any
legal matter relating to the Charter and any other relevant
Human rights.

Differences
- The enforcement machinery of the African system
consists of the African Commission and the African Court of
Human and People Rights. Under the European system, the
protocol N. 11, which came into force on November 1, 1998,

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replaced the European commission and the former Court of Human
Rights with the actual European Court on Human Right.

- The Jurisdiction ratione materiae of the European Court is

restricted to matters concerning the interpretation and
application of the Convention and the protocols thereto while
the African Court has a wider jurisdiction encompassing the
interpretation and application of the Charter, the Protocol
and any relevant Human Rights instrument ratified by the
states concerned. Moreover, the jurisdiction ratione personae
in the African system is wider defined than in the European
system. The European Court can sit only on cases submitting by
victims while the African Court, through the channel of the
African Commission, can received cases submitted by non-
victims.

- The European Court is composed of a number of judges

equal to that of the High contracting parties and there is no
restriction on the number of judges of the same nationality.
In the African system the situation is unlike. It is provided
that the Court consists of eleven judges and that no two
judges shall be nationals of the same state.

- While the African Court has to render its judgment

within ninety days of having completed its deliberations. No
time-limit is required from the European Court.

- While the African system entrenches civil and

political rights as well as socio-economic rights in a single,
the European system provides for the protection of these
rights in different instruments.

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- While the European system provides for derogations
clauses and precises what are the rights that may not be
limited even in case of emergency, the African Charter
incorporates claw-back clauses which allow a state to restrict
the granted right, even in normal circumstances, by reference
to its own domestic laws.

4. Locus standi of individuals and remedies before the

African Court for Human and Peoples‟ Rights and the Inter-
American Court

Locus standi
Under Article 5 of the African Court Protocol, only the
African Commission, states parties and African inter-
governmental organizations enjoy an unconditional direct
standing before the African Court on Human and Peoples‟
Rights. As to NGOs and individuals, a combined reading of
Article 5 (3) and 34(6) of the African Court Protocol shows
that they cannot apply directly to the African Court, save if
the matter involves a state that has made a declaration
accepting the Court jurisdiction to this end. In the inter-
American system, there is not such an option. It is only the
Inter-American Commission and the states parties that may
bring a case directly before the court, individuals are in any
case oblige to submit their complaint through the Inter-
American Commission. In other words, both systems are similar
in that they mediate individuals‟ submission of cases through
the Commissions, but they differ to the extend that in the
African system individuals have, depending on the will of
states parties, an optional road which allows them to pass by

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the Commission and apply directly to the Court. So far, only
Burkina Faso has made such an option available to
individuals. Another aspect that deserves to be pointed out
is that in both systems the jurisdiction of Courts is not
limited only to victims due to the fact that Commissions can
receive petitions even from non-victims and therefore submit
them the Court.

Remedies
As to remedies, Article 27 of the Protocol corresponds closely
with the Article 63 of the American Convention. Both articles
provide for remedies that are appropriate, for the payment of
fair compensation to the injured party and for the possibility
to adopt provisional measures in cases of extreme gravity.
Killender points out that „though the African Court Protocol
provides that its judgments are binding, there is no provision
similar to the one in the American convention that provides
that reparations ordered by the Inter- American Court can be
enforced in national courts.

From a practical point of view, this statement would not make

a very significant difference if Article 30 of the African
Court Protocol Can be regarded like binding on states parties.
In such case, it will be possible for the complainant in any
case to initiate a process of execution of judgment against
the state concerned. Apart from this, it is to be desired that
the African Court follows the practice of the Inter-American
Court which has usually précised the amount of compensation,
instead of the African commission one which consists of only
stating the right of the complainant to an adequate
compensation without providing the amount.

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5. Assessment of the African Commission Jurisprudence
Jurisprudence on Peoples‟ rights to self-determination

Article 20(1) of the ACHPR reaffirms the right of all people

to the self-determination. As known, this principle originates
from the United Nations. However, the relevant question that
has never found the unanimity of all remains the exact meaning
of the concept „people‟. While some are of the opinion that
„people‟ relates only to sovereign state, others support that
it cannot be limited to this category only and should extend
to different communities inside a state. The African
Commission has already dealt with cases brought on the basis
of Article 20 (1) and has mixed the both approaches of it.

For instance in the Katangese Peoples’ Congress v Zaïre, where

the president of this congress tried to rely on the right to
self-determination to achieve the independency that region,
the Commission held that „„ in the absence of concrete
evidence of violations of human rights to the point that the
territorial integrity of Zaire should be called to question
and in the absence of evidence that the people of Katanga are
denied the right to participate in government (…), Katanga is
obliged to exercise variant of self-determination that is
compatible with sovereignty and territorial integrity of
Zaïre.

As pointed out by Dresso, the finding of the Commission

suggests that as long as, there is a constitutional
and statutory framework that guarantied participation of all
zaireois equally, the self-determination of Katangese found

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expression through exercise of the self determination of all
zaireoise. According to Ouguergouz, this was a measure of
extreme prudence of the African commission, which preferred to
link the exercise of the right to self-determination to that
of the right of the individual to participate in the
government of this country. The Commission held the same
position in Constitutional Rights and Civil Liberties
Organization v. Nigeria.

It is clear from the Katangese and others cases that the

Commission considered the peoples‟ right to self-determination
like applying to the population of a state as a whole as well
as like applying to a particular people within a state. The
African Commission has not limited the concept „‟people‟‟ to
sovereign states but it has usually combined its application
with other principles in order to reach a fair and balanced
decision.

In the case involving the Ogoni community against the state of

Nigeria, the African Commission applied peoples‟ rights to
that community. The case provides evidence that the African
Commission regards peoples‟ rights as also providing
protection to subgroup against their states. In this
connection, it is to be pointed out that the people right to
self-determination has also an economic dimension. It implies
that every people shall exercise permanent sovereignty over
their natural resources. Although the African Charter does not
expressly mention the phrase „„permanent sovereignty over
natural resources‟‟, it provides for this right in the terms
of Article 21.

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It is in this context that in the Ogoni case, the African
Commission founds that the state of Nigeria had violated the
rights to free disposal of ones wealth and natural resources.
The wider application of the concept „„people‟‟ is somewhat in
line with the original context in which this right arose in
the region. At the beginning this right was invoked in
connection with peoples under colonial and alien domination
who naturally did not enjoy sovereignty. Nevertheless, despite
the possibility to broadly apply the concept, the practice of
the African Commission has reflected the will of this
institution to remain in accordance with the practice of
African states and the OUA. In this respect, the people right
to self-determination can be asserted in any case, provided it
is consistent with the African Union notions of sovereignty.

Jurisprudence on Socio-economic rights

Socio-economic rights have usually been dealt with by the
African Commission subsequently to civil and political
violations. However, there are cases were they were the main
subject of complaints. In both contexts, the African
Commission has in many cases found violations of these rights:

- In the John K. Modise case, where the complainant was

rendered homeless by a denial of nationality by both Botswana
and South Africa, the Commission held on the basis of Article
5 of the ACHPR that such enforced homelessness was inhuman and
degrading treatment that offended human beings dignity.

- In Union Interafricaine des Droits de l’Homme v. Zaire,

where the Complaint was grounded, inter alia, on allegations
of mismanagement of public finances, the failure of Zaire to

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provide basic services, and shortage of medicines, the
Commission held that there had been a violation of Article 16
of the ACHPR.

- In Annette Pagnoulle (on Belhalf of Abdoulaye Mazou) v.

Cameroon, the Commission found a violation of Article 15 of
the ACHPR guarantying the right to work because a Magistrate,
Mr Mazou, had been held in prison without trial and not
reinstated in his position when others condemned in similar
circumstances had been.

All the following decisions and others show a real willing of

the African commission to promote and protect socio-economic
rights in the region. Unfortunately, despite all the
violations found by the African Commission, this institution
has not clearly stated through its jurisprudence its views on
legal nature of these rights. In such connection, considering
the approach undertaken in the ACHPR, one may contemplate the
assertion that the African Commission should regard them as
justiciable and not merely as „objectives‟.

The Inter-American Human Rights System

Introduction
The states of the American continents have created a regional
institution, the Organization of American States (OAS), which
includes several structures for protecting human rights. The
Charter of the Organization of American States focuses on
several areas promoting human rights: democracy, economic
rights, the right to education, and equality. The Charter also
establishes two main institutions designed specifically for
human rights protection and promotion: the Inter-American

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Commission on Human Rights and the Inter-American Court of
Human Rights. It protects rights via the creation of
substantive norms and maintains these standards through the
petition process.

History
Regional interaction is not new to the Americas. At the
beginning of the 19th century, South American freedom fighter
Simón Bolívar attempted to create an association of states
from the hemisphere during the 1826 Congress of Panama. Later
that century, in 1890, the First International Conference of
American States was held in Washington, D.C., where the
International Union of American Republics and the Commercial
Bureau of the American Republics were first established. The
Commercial Bureau, which turned into the Pan American Union in
1910, was a predecessor of the OAS.

The 21 participants in the Ninth International American

Conference signed the OAS Charter on April 30, 1948 in Bogotá
(Colombia), thus transforming the Pan American Union into a
new regional organization. Included in the Charter was an
affirmation of the nations' commitments to common goals and
respect for one another's sovereignty. Participants in the
conference also signed the American Declaration of the Rights
and Duties of Man, which, having been signed just months
earlier than the United Nation's Universal Declaration of
Human Rights, became the first international document
proclaiming human rights principles. The Director General of
the Pan American Union, Alberto Lleras Camargo, became the
first Secretary General of the OAS.

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Organization of American States
The Organization of American States strives to address five
general areas of focus. First, it looks to further democracy,
specifically by strengthening freedom of speech, encouraging
an increase in the participation of civil society in
government, and eliminating corruption. Second, the OAS seeks
to promote human rights, especially the areas of women's
rights, children's rights, and cultural rights. Third, the
Organization focuses on increasing regional and hemispheric
peace and security by eliminating terrorism and de-mining the
area. Fourth, the OAS concentrates on improving rule of law by
strengthening the Inter-American legal development, ridding
the region of illegal drug use and trafficking, and lowering
regional crime levels. Last, the Organization of American
States tries to strengthen the regional economy. It supports
the creation of a Free Trade Area of the Americas, it looks
advances in science and technology, telecommunication,
tourism, sustainable development and the environment. It also
looks to reduce poverty and promote education, and deal with
labor issues.

All 35 countries of the Americas have ratified the Charter of

the OAS and belong to the organization. The 21 original member
states, who signed the OAS Charter on April 30, 1948, were:
Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba,
the Dominican Republic, Ecuador, El Salvador, Guatemala,
Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru,
the United States, Uruguay and Venezuela. The following states
have joined the OAS since then: Barbados (1967); Trinidad and
Tobago (1967); Jamaica (1969); Grenada (1975); Suriname

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(1977); Dominica (1979); Saint Lucia (1979); Antigua and
Barbuda (1981); Saint Vincent and the Grenadines (1981); The
Bahamas (1982); St. Kitts and Nevis (1984); Canada (1990);
Belize (1991); and Guyana (1991).

Main Bodies
The OAS Charter has been amended twice, once by the 1967
Protocol of Buenos Aires and again in the 1985 Protocol of
Cartagena de Indias. The Charter outlines the institutional
structure of the Organization of American States. There are
six main types of institutions associated with the OAS:
Governing Bodies; Committees and Commissions; the General
Secretariat; the Inter-American Emergency Aid Fund;
Specialized Organizations; and Other Agencies. These six
branches of the OAS perform distinct roles and functions for
the organization.

Governing Bodies
There are three different governing bodies within the OAS. The
General Assembly is the highest decision making body. It meets
once and year and its membership consists of the foreign
ministers of each member state.

The Permanent Council mainly addresses administrative and

political issues arising within the OAS. It is headquartered
in Washington, DC, and meets on a regular basis; its
membership consists of one ambassador appointed per member
state.

The Inter-American Council for Integral Development focuses on

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promoting economic development and combating poverty.

Inter-American Committees and Commissions

There are seven main committees or commissions within the OAS.
The most significant avenues for promoting and protecting
human rights within the OAS fall within this type of
institution. The seven bodies are: the Inter-American
Committee Against Terrorism (CICTE); the Inter-American
Juridical Committee; the Inter-American Commission on Human
Rights; the Inter-American Court of Human Rights; the Inter-
American Drug Abuse Control Commission; the Inter-American
Telecommunications Commission; and the Inter-American
Committee on Ports.

General Secretariat
The General Secretariat carries out programs and policies set
by the General Assembly and the Councils. There are 21 sub-
groups to assist the General Secretariat in this duty.

Specialized Organizations
These include: the Pan American Health Organization; the
Inter-American Children's Institute; the Inter-American
Commission of Women; the Pan American Institute of Geography
and History; the Inter-American Indigenous Institute; and the
Inter-American Institute for Cooperation on Agriculture.

Other Agencies and Entities

The OAS also has an Administrative Tribunal, an Inter-American
Defense Board, and a Pan American Development Foundation.

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Human Rights Bodies of the Organization of American States
The two main institutions for the protection and promotion of
human rights throughout the American hemisphere are the Inter-
American Commission on Human Rights and the Inter-American
Court of Human Rights.

Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights was the
principle institution that the OAS Charter created for human
rights protection and promotion. It is based in Washington, DC
(USA) and is assisted by an Executive Secretary's Secretariat.
It is composed of seven independent experts who are elected to
four year terms by the OAS General Assembly. During its
sessions, it hears from individuals and representatives from
organizations on various claims of human rights abuses.

The main duty of the Commission on Human Rights is to hear and

oversee petitions that have been made against a member state
of the OAS claiming a human rights abuse. The human rights
universally protected by the Commission, and thus eligible to
be petitioned for their protection, are those found in the
American Declaration of the Rights and Duties of Man. States
have ratified the American Convention on Human Rights are
bound by the human rights guaranteed in the Convention, which
are monitored by the Commission.

The proceedings of the Commission are listed in the

Commission's Statute and Regulations. In most scenarios, the
proceedings are the same for petitions being filed against
countries that have signed the Convention and those that have

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not. The status for admissibility, the procedural stages, the
fact-finding process, and the decision making are all similar,
if not the same, in the two instances. One difference rests in
the petition's outcome; with countries that have ratified the
American Convention, the Commission is asked to find a
"friendly settlement"; no such specification is made for
states that have not ratified the Convention.

Any individual, group of people, or NGO who are legally

recognized in at least one OAS member state may file a
petition; the petition may be submitted by either the victim
or a third party may do so, with or without the victim's
knowledge. The criterion for an admissible petition is listed
in Articles 44 through 47 of the American Convention, as well
as in Articles 26 and 32 through 41 in the Commission's
Regulations. In each situation, a petition must include
information on the individual or individuals filing the
petition, the subject matter of the petition, and the
"procedural posture" of the petition.

There are two types of petitions that may be filed: either a

general petition or a collective petition. A general petition
is filed when a widespread form of human rights violations
that is not limited to just one group of people or just one
incident has occurred. A collective petition is filed when
there are numerous victims of a specific incident or practice
violating human rights. With both types of petitions, specific
victims must be acknowledged. All petitions must include the
name, nationality, profession or occupation, postal address,
and signature of the person submitting the petition. An NGO
must include its legal address and legal representative's

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signature.

All petitions filed must include certain facts to be

admissible. Petitions should state the place where the
violation occurred, the date on which it happened, the names
of the victims, and the names of state officials involved with
the violation. All pieces of information should be as specific
as possible, as the Commission does not have the economic or
personal resources to always conduct thorough investigations
without help from the petitioners themselves. Especially
crucial to a successful petition is the inclusion of as
detailed and thorough information as possible regarding the
government's involvement in the human rights abuse, as the
Commission is only authorized to investigate claims made
against a government of an OAS member state. A government may
be involved directly or indirectly, by failing to prohibit,
prevent, or stop private human rights abuses. In providing
this information, relevant interviews may be submitted, and
can be kept confidential if need be.

Another useful inclusion to a petition is a list of the rights

violated. These petitions, which may be based on either civil
and political rights or social, economic, and cultural rights,
may refer to OAS human rights documents, as well as human
rights documents from the United Nations or other regional
bodies. They may also refer to precedents set by the Inter-
American Commission on Human Rights or the Inter-American
Court of Human Rights.

The American Declaration and the American Convention both

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stipulate situations in which the suspension of certain rights
would be legitimized. Even if the rights violated in a
petition qualify as derogable in distinct circumstances, it
may still be a valid petition, if the government had failed to
prove the rights suspension necessary, or the rights
suspension was unnecessarily broad, or if the suspension was
unnecessarily discriminatory, or if the suspension violated
other state international agreements. Still other rights, even
with the Declaration's and Convention's clauses, are held to
be non-derogable, and thus no situation is justification for
their suspension. These rights, if infringed, may always be
petitioned.

Eligibility of a petition depends on a few further criterion.

The Commission will only accept petitions where all domestic
legal action has already been unsuccessfully taken; a petition
must prove this to be the case. If the petitioner cannot prove
this, the state's government may be asked to do so, and if the
state can show that some domestic legal opportunities are
still available to the petitioner, then the petitioner must
demonstrate that one of four situations applies: either access
to these remedies has been denied or prevented, there has been
an unnecessary delay in judgment, there was a denial of
adequate legal counsel, or the domestic legislation does not
provide due process to protect the rights violated.

After all domestic legal action has been completed, the

petition must be filed within six months of the final ruling.
Extensions are granted when the state interfered with the
process, and then the petition must be filed within a
reasonable amount of time. If the petition is being filed by a

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third party, it must be done so within a reasonable amount of
time.

A petition may not be submitted that, in essence, duplicates a

previous or current petition. One such petition may be
submitted if the other is a general petition, or if it does
not deal with the facts of the case of the new petition, or if
it does not address the same victims for settlement purposes,
or if the first petition was submitted by a third party
unknown to the victims who are submitting a new petition.

If at any point it becomes apparent that a petition is

inadmissible, the Commission informs the petitioner and closes
the file. Otherwise, the Commission will examine the case. It
opens a file, gives the case a number, and submits all
pertinent information to the government in question's Minister
of Foreign Affairs. It requests that the Minister supplies
information on the facts and on domestic remedies utilized,
while it alerts the petitioner that the petition is being
examined. Normally, it will allow the government 90 days to
respond, but it can grant an extension of up to 180 days if
the government so requests and proves it necessary. Sometimes
the Commission may request that information be shared sooner
than 90 days for special cases; a lack of response on the part
of the government may indicate it is guilty.

The government's response, if there is one, is forwarded to

the petitioner, who then has thirty days to comment on the
response as well as submit further material, if desired. The
petitioner may ask for evidence on certain government
statements or may request an oral hearing for the introduction

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of witnesses. The Commission then will decide whether or not
to hold the oral hearing; it is authorized but not obligated
to do so. The petitioner may also request for the Commission
to undertake an on-site investigation in the country in
question. The Commission will only investigate for allegations
of widespread human rights violations within a country, and
look at individual cases then as demonstrative of a broader
theme. This method is rarely undertaken for just an individual
case.

The Commission, after making its decision on the petition,

releases judgment on what should be done by issuing
recommendations to the state concerned. In the event that the
state is party to the American Convention, the Commission must
attempt to formulate a friendly settlement, if possible. The
Commission, following this outcome, prepares a report for each
party and for the OAS Secretary General to publish.

If a friendly settlement is either not sought or reached, the

Commission writes a report with the facts of the case and the
Commission's conclusions, recommendations, and proposals. The
state concerned and the Commission then have 3 months to
decide whether or not to submit the case to the Court of Human
Rights or settle the matter. Next, the Commission formally
adopts an opinion and a conclusion with time limits for the
government to undertake the proposed measures.

If the state is a party to the American Convention and has

accepted the Court's optional jurisdiction, the Commission or
the state may refer the petition to the Court of Human Rights
for a new evaluation culminating in a binding judgment with

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possible monetary ramifications.

States that are not parties to the Convention are not subject
to the friendly settlement clause. In that situation, the
Commission will undergo its fact finding and then determine
the merits of the petition, adopt a final decision (usually a
lengthy resolution) with recommendations and deadlines.
Regulations state that the decision may be published "if the
state does not adopt the measures recommended by the
Commission within the deadline", yet the Commission has
actually published more frequently than that. The Commission
may recommend compensation to the victims, but does not have
the power to officially award such compensation. The decisions
of the Committee are not legally binding.

In addition to investigating cases, the Commission may, on its

own initiative, investigate and issue a report on the human
rights situation in any OAS member state. The Commission bases
its independent studies on reports it has received from NGOs
and individuals. The Commission also submits an annual report
to the OAS General Assembly, with information on resolutions
of particular cases, reports on human rights situation in
various states, and discussions of areas needing further
action to promote and protect human rights.

Inter-American Court of Human Rights

The Inter-American Court of Human Rights was established in
1978 with the entry into force of the American Convention. It
hosts seven judges who are each nominated and elected for six
years long terms by the parties to the American Convention; a
justice may be reelected only once. The Court has its

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permanent seat in San José (Costa Rica).

The Court's jurisdiction is limited. It may only hear cases

where the state involved has a). ratified the American
Convention on Human Rights, b). has accepted the Court's
optional jurisdiction (as of 1992, only 13 of 35 nations had
signed this optional jurisdiction), c). the Inter-American
Commission on Human Rights has completed its investigation,
and d). the case was referred to the Court either by the
Commission or the state involved in the case within three
months of the release of the Commission's report. An
individual or a petitioner may not independently bring forth a
case to be considered by the Court.

In the event that the Commission brings a case forward to the

Court of Human Rights, it notifies the original petitioner. At
this point, the petitioner or an attorney has the opportunity
to request necessary measures, including precautions for
witnesses and protections for evidence.

Proceedings are both written and oral. Initially, both a

written Memorial and Counter-Memorial are submitted. They may
be accompanied by a statement of how the facts will be proven
and how the evidence is to be presented. In the event that
there are complex legal issues involved, petitioners may
request a supporting amicus curiae brief from an NGO. Normally
hearings are open to the public, but the Court may decide to
close them.

The Court's deliberations are always secret and confidential;

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its judgments and opinions are published. If the Court rules
that a right has been violated, it will order that the
situation be rectified. It may award compensation to the
victim for actual damage, emotional harm, and/or litigation
costs, but it will not award punitive damages.

Main Human Rights Treaties and Declarations

International legal instruments take the form of a treaty
(also called agreement, convention, protocol) which may be
binding on the contracting states. When negotiations are
completed, the text of a treaty is established as authentic
and definitive and is "signed" to that effect by the
representatives of states. There are various means by which a
state expresses its consent to be bound by a treaty. The most
common are ratification or accession. A new treaty is
"ratified" by those states who have negotiated the instrument.
A state which has not participated in the negotiations may, at
a later stage, "accede" to the treaty. The treaty enters into
force when a pre-determined number of states have ratified or
acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may

make reservations to one or more articles of the treaty,
unless reservations are prohibited by the treaty. Reservations
may normally be withdrawn at any time. In some countries,
international treaties take precedence over national law; in
others, a specific law may be required to give an
international treaty, although ratified or acceded to, the
force of a national law. Practically all states that have
ratified or acceded to an international treaty must issue
decrees, amend existing laws or introduce new legislation in

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order for the treaty to be fully effective on the national
territory.

Declarations, on the other hand, are non-binding documents.

They instead serve to proclaim a shared point of view of many
nations.

The OAS has adopted several declarations and treaties relating

to human rights, some being:

American Declaration of the Rights and Duties of Man (1948)

American Convention on Human Rights (1969)

Cartagena Declaration on Refugees (1984)

Inter-American Convention to Prevent and Punish Torture (1985)

Protocol of San Salvador: Additional Protocol to the American

Convention on Human Rights in the Area of Economic, Social,
and Cultural Rights (1988)

Protocol to the American Convention on Human Rights to Abolish

the Death Penalty (1990)

Inter-American Convention on the Forced Disappearance of

Persons (1994)

Inter-American Convention on the Prevention, Punishment, and

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 Eradication of Violence Against Women (1994)

Inter-American Convention on the Elimination of All Forms of

Discrimination against Persons with Disabilities (1999)

Proposed American Declaration on the Rights of Indigenous

Peoples (1997)

The European convention on human rights

The European convention for the protection of human rights and
fundamental freedoms (European Convention), which was adopted by
the council of Europe in 1950, came into force in 1953. Today it
is an essential component of the political order of Europe with
45 members, which includes all historically „western European‟
states, Turkey, and erstwhile „Eastern European‟ states such as
Russia, Hungary, the Czech Republic, and Slovakia. The European
Convention is confined to civil and political rights. Economic,
social, and cultural rights are protected in a separate
convention, the European Social Charter of 1961.

The European convention and the international covenant on civil

and political rights share a common source of inspiration, the
Universal Declaration of Human Rights, and they consequently
follow the same pattern. There is no protection of property
rights in the European Convention, but this right is guaranteed
in the first Protocal to the convention. The Death penalty is
not outlawed in the convention, but this was done in the second
protocol of 1983, which has been ratified by many states.
The convention has succeeded in extending human right to
millions of Europeans, largely as a result of the effectiveness

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of the methods of enforcement, through both domestic law and
international machinery.

Contracting states are required to „secure to everyone with

their jurisdiction‟ rights contained in the convention (art.1)
and to ensure that their municipal law provides „an effective
remedy‟ (art.13). As treaties form part of the municipal law of
most of the European states without the need for an Act of
legislative incorporation, the convention is part of the local
law of most Europe. Consequently it is considered and enforced
by the domestic courts of these countries in the first instance.
Countries which follow Dualist approach to treaties have either
incorporated the convention into municipal law or amended their
legislation where appropriate guide in human rights cases.

The international machinery for the enforcement of the European

Convention on human rights has undergone a major change. Under
the original enforcement scheme, a part-time commission acted as
a filtering body to decide whether application were admissible
and as a mechanism to secure a friendly settlement. Its report
went to the committee of Ministers of the council. Where no
friendly settlement was archived, the application was referred
to a part-time court to decide the case.

The new system, introduced by protocol XI of 1994, and first

implemented in 1999, is a response to the increased work load
imposed on part-time commission and judges. The commission is
abolished and now there is only a court.

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