Summary of Handbook of International Law by Aust

Chapter 1. International law

Private international law and transnational law

The term ‘private international law’ refers to what is known as the ‘conflict of laws’. It covers the body of rules of a State’s domestic law which addresses legal issues with foreign elements; these rules determine which legal rules and jurisdiction are applicable.

A number of institutions are responsible for harmonisation of rules concerning conflict of laws. The Hague Conference on Private International Law, established in 1893 is tasked with the harmonisation of domestic rules on conflict of laws; UNIDROIT is responsible for the harmonisation of commercial domestic laws; UNCITRAL is tasked with harmonising international trade law.

The term ‘transnational law’ primarily connotes the study of the laws of multiple States, comparative law, supranational law, and (commercial) public international law. The study of transnational law gives the impression that the laws of States are becoming ever more similar; however, this is not the case.

The nature of international law

International law is generally known as ‘public international law’ (sometimes also as ‘general international law’), in contrast to the public international law described above. It was previously known as the ‘Law of Nations’. Public international law is the product of the actions of States instead of a single national legal system.

The history of public international law is generally said to have started with Hugo Grotius, a Dutch jurist and diplomat, who lived from 1583 to 1645. Another important event in the early history of Public International Law is the Peace of Westphalia in 1648, which concluded the end of the Thirty Years’ War and the period of feudalism in European history. It also marked the emergence of the modern nation state with a strong centralised government exercising control over its subjects. These new states were in need of rules to govern conduct between them. From the mid-seventeenth century these rules governing the relations between states evolved into contemporary international law.

Many students of international law question whether it is truly ‘law’, given that it has no enforcement mechanisms similar to those of domestic laws. Nevertheless, one can consider international law as being ‘law’, if one deems its strength as being derived from the acceptance of States to be bound by its rules – in contrast to whether these rules are directly enforced by an ‘international police’.

International law exists for the benefit of States – it allows their relationships to be governed by a body of shared principles and rules. Much of early international law addressed those issues which were in the interest of states, such as issues of immunity.

The importance of international law is also evident by the fact that many government departments have advisers on international law. Students of international law may find work in such departments, as well as in international courts and tribunals, at the UN or at NGOs dealing in legal issues.

The sources of international law

In contrast to domestic law, it is not always easy to find what international law says on a particular issue. The former derives its certainty from legislature, judgements, and a hierarchical system of courts – of which international law has none.

Nevertheless, the sources of international law are generally seen as being defined by Article 38(1) of the Statute of the International Court of Justice (ICJ). These sources are listed as:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

There is no formal hierarchy in these sources, but sources (a) and (b) are generally seen as more important than (c) and (d).

Art. 38(1)(a) refers to ‘international conventions’, meaning bilateral and multilateral treaties. A treaty only applies to those parties which are signatories to it; relations between a party and a non-party are governed by customary international law.

Customary international law is also known as ‘custom’. There are two elements to the establishment of custom. The first of these is the practice of States, which can take place over a very long or short amount of time. Practice can be deduced from a wide range of actions by a State; silence of a State on issues in which it has an interest can also be construed as practice by virtue of acquiescence. A practice can be prevented from becoming custom if it is inconsistent with other established rules of custom and if a State is a persistent objector to it becoming custom.

The second element that establishes custom is opinio juris, which is the recognition by a State that it acts in a certain way in one type of practice because it sees this manner of operating as legally binding under international law. Recognising what is and is not opinio juris is one of the most challenging aspects of practicing international law.

General principles of law are generally concepts of legal reasoning drawn from private law, such as good faith and estoppel. The obligation to act in good faith can be found in Art. 2(2) of the UN Charter and Art. 26 and 31(1) of the Vienna Convention of the Law of Treaties 1969. Estoppel concerns the obligation of a State in certain situations to act consistently with regards to previous acts. It also limits a State from denying responsibility for adverse consequences resulting from its formal declarations.

Even though the the judicial decisions of (both national and international) courts and tribunals are a subsidiary source of international law, they can greatly influence the development of the international legal system, particularly when there is evidence of a trend on a particular issue.

For a written work of the teachings of the most highly qualified publicists to contribute to the body of international law it is important that it the result of research into what the law says (lex lata), rather than what it should say (lex ferenda).

Certain State obligations are owed to all other States – in other words to all the world (erga omnes). Part of this body of norms includes jus cogens norms (see below) and certain human rights.

According to Art. 53 of the Vienna Convention on the Law of Treaties 1969, a jus cogens or peremptory norm is: “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. There are a number of norms which are generally accepted to have attained the status of jus cogens: the prohibition on the use of force and aggression, genocide, slavery, racial discrimination, torture and crimes against humanity.

The term of ‘soft law’ is generally defined as those international instruments of which the makers did not intend to be a treaty, but which nevertheless provide guidelines for the promotion of certain norms which are deemed to be universally desirable. They are not legally binding. One can recognise ‘soft law’ instruments by a number of names, such as ‘Guidelines’, ‘Principles’, ‘Declarations’, ‘Codes of Practice’, ‘Recommendations’ or ‘Programmes’.

There also exist things such as rules of comity: these dictate certain rules of politeness, convenience and goodwill. They are not legally binding.

Domestic law

Domestic law is the applicable law within a State. It is sometimes also known by the terms of ‘national’, ‘internal’ or ‘municipal’ law.

International and domestic law interact with each other on a number of points. Thus many points of international law are aimed at eventually operating at the domestic level within the legal systems of States.

Subjects and objects of, and actors in, international law

One can distinguish between ‘subjects’ ‘objects’ and ‘actors’ in international law:

• Subjects: entities to which the rights and obligations of international law attach directly, such as states and international organisations

• Objects: those against which the rights and obligations accorded to them under international law can only be enforced by States. Examples include natural and legal persons.

National liberation movements (NLMs) are increasingly gaining the status of international subjecthood. Non-governmental organisations (NGOs), however, are not subjects of international law.

Chapter 2. States and recognition

Criteria for statehood

There are four criteria for statehood which have become generally accepted under public international law. These criteria are laid down in Article 1 of the 1933 Montevideo Convention, which requires that “the state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states”.

These requirements can each be examined in turn:

• Permanent population: this population need not be homogeneous in any sense; what is of main importance is that the population is settled.

• Territory: it does not matter what the size of a territory in determining statehood.

• Government: the government must be a central political body operating in accordance with the rule of law, and in effective control over its territory.

• Independence in external relations: an entity must have the capacity to enter into relations with other States in order for it to be recognised as a State itself. The government of the state in question must be sovereign and independent from the authority of other States.

Recognition of states

There are two theories of recognition discussing at which point an entity becomes a State: the declaratory theory and the constitutive theory. The declaratory theory states that recognition occurs when a state fulfils the aforementioned four criteria of statehood. The constitutive theory, on the other hand, states that an entity does not become a State unless it is recognised as such by other States. It is the latter which is more often true when one looks at the practice of states in the past, with the examples of East and West Germany, North and South Vietnam, Kosovo, and Taiwan. Membership of the UN can sometimes also be seen as the recognition that an entity is a state, given that membership is only open to ‘States’. There are, however, a number of exceptions, including Vatican City, Taiwan and Palestine. Even if a state is unrecognised by the state from which it wishes to secede, the domestic courts of that country may decide to follow any laws passed by the courts of the seceding nation for the purposes of convenience for the population of the area.

Vatican City is a rather exceptional case. Because of the Lateran Treaty of 1929, which was concluded between the Holy See and Italy, the Vatican City gained what might be deemed to be the status of a ‘State’, given that it was recognised as such by other States. It has permanent observer status in the UN, and is also involved in a number of international organisations. It has also become a party to a number of treaties.

Taiwan was created as a consequence of the civil war in China. The nationalist government was forced out of the country by the communist forces; the nationalists fled to the island of Taiwan and proclaimed that it remained the government of China. Simultaneously the communists created the People’s Republic of China in 1949, which was recognised by other States as being the government of China. Consequently, Taiwan is not recognised by many other States. It is possible that in the future relations between the two entities will be restored and that Taiwan might become a Special Administrative Region of the People’s Republic of China along the lines of Macao and Hong Kong.

The Turkish Republic of Northern Cyprus (TRNC) is only recognised by Turkey. The Turkish part of Cyprus’ population decided not to participate in the official government of Cyprus from 1963 onwards; in 1974 the Turkish army invaded the northern part of the island – where the Turkish community was located – and since then the two parts of the country have been divided, with a buffer zone between them (known as the ‘Green Line’). Eventually the non-Turkish part of Cyprus became a member of the EU. It is hard to determine when the two segments of Cypriot society will reunite.

The Union of Soviet Republics – also known as the Soviet Union – consisted of a number of non-independent republics which were effectively provinces. A number of these former provinces now have an interesting status under international law:

• Abkhazia and South Ossetia: both are provinces of the State of Georgia but have de facto acted as if they were part of Russia since 1991. Both declared their independence in 2008, but have remained unrecognised by the majority of states.

• Transdniestria: lies between Moldova and Ukraine and has been a de facto part of Russia since 1990, despite formally belonging to Moldova. It has also not been recognised as such by the majority of states.

• Nagorno-Karabakh: lies within the country of Azerbaijan and is populated by a majority Armenian population. There was a war from 1988-1994 between Azerbaijan and Armenia about who controlled the enclave; the issue has yet to be resolved.

• Republika Srpska: is part of the State of Bosnia and Herzegovina together with the Federation of Bosnia and Herzegovina.

• Kosovo: was a province of Serbia; between 1999-2008 it was administrated by the UN UNMIK (United Nations Interim Administration Mission in Kosovo) mission. It has not yet been resolved whether Kosovo still remains part of Serbia or whether it is a separate state.

The Federal Republic of Yugoslavia (FRY) claims that it is what used to be the Socialist Federal Republic of Yugoslavia (SFRY), although this has not been recognised by the states of Bosnia and Herzegovina, Croatia, Macedonia or Slovenia, which made up the territory of the SFRY. Thus the status of the FRY remains undecided.

Self-determination

All peoples have the right to self-determination under international law. The United Nations is tasked with developing “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace” (Article 1(2), UN Charter). The right to self-determination is recognised as an erga omnes right. However, self-determination does not necessarily entail independence; it can also entail that the population of an area decides to remain with its (former) governing state, even if the latter desires independence for the territory.

Secession

The right to self-determination is generally only recognised in the context of decolonisation. It is thus much more controversial if a people from part of a ‘metropolitan’ state decides that it wants to secede. This is primarily because to do so would be in tension with the principles of territorial integrity and uti possidetis.

Nevertheless, secession is not prohibited under international law, an example being the dissolution of the USSR. Secession is more likely to be recognised if the State from which a people is seceding is not in effective control of the region in question or if the State has already dissolved or if the situation surrounding its own conception were already slightly artificial.

If a State so desires, it may reverse the principle of territorial integrity if it has no objection to part of its territory seceding. Similarly, uti possidetis need not necessarily be an impediment to the secession of a people from a State if the former have been treated badly by the latter.

Recognition of governments

States act through their governments. It is however important to keep in mind that changes in governments do not affect the legal status of a State. Other States may nevertheless refrain from formal recognition of certain governments who did not come into power democratically or who have patchy human rights records, in order to avoid political embarrassment. States will nevertheless de facto recognise these governments in order to remain pragmatic.

An entity (being either a State or government) can be recognised de jure or de facto by other States. De jure recognition entails that the entity fulfils the requirements of statehood. De facto recognition implies that the entity has been provisionally recognised as a State. Examples of states which are not fully recognised by the international community are Palestine and Western Sahara.

Recognition can be given through certain means. Recognition can be express or implicit in a State’s action. Express recognition possibly includes formal announcements of recognition; implied recognition includes the support of a UN membership-application; allowing the recognised entity to conclude a bilateral treaty with the State recognising it is another form of implicit recognition.

Overseas territories

Overseas territories were previously termed as ‘colonies’ or ‘dependent territories’ (they were also once known as ‘protectorates’). An overseas territory is a non-self-governing territory which is part of a (distant) sovereign State. Although there are still over fifty overseas territories throughout the world, the UN is no longer as concerned with non-self-governing territories as it once was, given the massive wave of decolonisation following the Second World War. There are several forms of overseas territories:

• Colonies,

• Protected States,

• Condominiums,

• Mandated and trust territories

A colony is an area which a parent State or colonial power controls from its metropolitan territory – the colony is thus a non-metropolitan territory. Colonies can have differing levels of autonomy from their parent States, with the parent State usually retaining control over its defence and foreign affairs. A colony can neither conclude treaties nor enter into diplomatic relations with other States.

A protected State is an entity with many of the characteristics of the State, but which has been placed under the guardianship of another State. Examples of contemporary protected States are Andorra, Monaco and San Marino.

Condominiums are territories over which two (and possibly more) States exercise joint control and sovereignty. The last example of a condominium was the New Hebrides, which was jointly governed by France and Great Britain until 1980, after which it gained independence as the State of Vanuatu.

There are now no longer any remaining examples of mandates or trust territories. Mandates were established by the League of Nations in the interbellum period; a State was entrusted with the administration of another State until it was seen to be able to gain full independence. Mandates were replaced with ‘trust territories’ under the UN; the last trust territory, Palau, gained independence in 1994.

Chapter 3. Territory

The territory of a State includes that State’s land, internal and external waters, and the airspace above these areas. The limits of such territories are usually known as the ‘boundary’, ‘border’ or ‘frontier’ of that territory; ‘boundary’ is used most often, and can refer to both land and maritime boundaries.

Most territorial disputes are the consequence of disputes as to which State owns a particular part of land because of unclear boundaries between nations. One of the most well-known examples of territorial disputes is that between India and Pakistan regarding the area of Kashmir, which has been contested since 1947.

Delimitation and demarcation of territory

There is a subtle difference between the terms ‘delimitation’ and ‘demarcation’. Delimitation concerns the drawing up the land and maritime boundaries of a State, which involves the precise marking of the geographical coordinates of the boundary. The process of demarcation concerns the actual marking of the line of delimitation in the physical world through using physical objects.

Settling territorial disputes

In a territorial dispute settlement, it is important to examine the status of international law at the time that the State in question claimed the territory that is under dispute. This is known as the ‘intertemporal rule’. The concept of the ‘critical date’ is importance in this aspect; although hard to define, it essentially concerns the point in time after which the position of the parties to the dispute has become settles. Actions after the critical date contrary to this position will not affect the legal position of either of the parties.

Means of acquiring new territory

There is no settled principle under international law which definitively states when a territory has been validly acquired by a State. Most territorial disputes are extremely case-specific, and thus each dispute must be decided by carefully considering the evidence of the case in order to determine which State has the rightful claim to the territory. There are however several general formulas of territorial acquisition:

• Discovery

• Conquest and annexation

• Occupation and prescription

• Acquiescence, estoppel and recognition

• Through boundary treaties

• Through territorial leases

• Through changes in rivers demarcating a territory

• Through State servitudes

In the fifteenth and sixteenth centuries a State could acquire new territory by sighting unknown territory (and consequently formally proclaiming the land as its territory by virtue of planting a flag or otherwise). This norm has developed in such a way that it is now also necessary for a State to exercise effective control or occupation over an unknown territory before it can be claimed as part of the State.

Conquest and consequent annexation of a territory used to be a valid way for a State to validly gain new territory. Conquest was in most cases accompanied by cession (often through a peace treaty) in order for the territorial claim of a State over a territory to become legitimate. The contemporary situation regarding the validity of conquest is more complicated; Art. 2(4) of the UN Charter effectively prohibits the forceful acquisition of territory, because such an action would be in violation of the territorial sovereignty of the State previously in control of the territory. Similar statements can be found in the 1970 Friendly Relations Declaration.

There are two ways in which a State can exercise effective control over a territory: occupation and prescription. Occupation concerns the peaceful appropriation of territory known as terrae nullius. Terra nullius is a territory which isn’t owned by any State and upon which there are no peoples with social or political organisation. A State can claim terrae nullius through continual and effective control over the territory in question.

Prescription concerns the appropriation of non-terrae nullius territories in such a manner that is not necessarily entirely peaceful or legal. If a State can prove that it currently exercises effective control (and that it has done so for a long, uninterrupted period) over the territory in question and its claim to the territory has not been contested, then it can effectively claim territory which was not terrae nullius.

The claims of a State can be judged by a number of factors. It is obviously important that the State to which the territory previously belonged acquiesces to its transfer. The previous acts of the State taking over control of the territory are also of relevance; it can be estopped for these reasons. It is furthermore important that third parties recognise that the claimant’s entitlement to the territory is valid.

Boundary treaties must be recognised by all other States involved in the dispute. They cannot be recanted by any of the parties, with the possible exception of situations of legitimate self-determination.

It is also possible for a State to lease parts of its territory to other States, thereby transferring its sovereign powers in the region. Such leases are however no longer very common in practice, recent examples being the lease of Hong Kong to Great Britain by China and the lease of Guantanamo Bay to the United States by Cuba.

In some cases the boundary between two States can be a river. What point in the river is the exact boundary is determined by whether the river is navigable or non-navigable. If it is navigable, the boundary lies in the middle of the so-called thalweg, which is the principal channel of the river. If the river is non-navigable, the boundary lies in the midline of the river.

If the river changes shape through natural processes (such as erosion and accretion) or man-made processes, then the boundary line can potentially shift.

States can also grant servitudes to other States. These are legal rights to either an entire or partial part of a particular territory. An example of a servitude is the right of passage through a particular territory. Servitudes are known as in rem rights, in that they are not dependent on who has sovereign power of the region – a State will thus not legally lose its servitude rights if there is a change in which State controls the territory as a whole.

Res communis

The term res communis concerns territory which cannot be appropriated by any State. No State is allowed to use the territory in such a manner that might adversely affects its use by other States. Examples of res communis are Antarctica, the high seas, outer space or celestial bodies.

Common heritage of mankind

Certain territories have been acknowledged by numerous treaties as being part of the common heritage of mankind, such as the deep seabed in the 1982 UN Convention on the Law of the Sea and the moon under the 1979 Moon Treaty. However, these claims remain controversial.

Chapter 4. Jurisdiction

The principles of jurisdiction within international law determines whether and to what extent a State is allowed to exercise its domestic jurisdiction within its own territory and that of other States. There are two forms of domestic jurisdiction: prescription and enforcement – the making and the enforcement of laws, respectively.

Types of jurisdiction

There are several principles on which a State can justify exercising its jurisdiction over natural and legal persons and objects:

• The territorial principle;

• The nationality principle;

• The passive personality principle; and

• The protective principle.

Under the territorial principle a State is completely free to exercise its jurisdiction within the boundaries of its territory (unless it is restricted in some manner by a rule of international law). It can also extend its territorial jurisdiction over ships and aircraft registered within its territory. The second principle, the nationality principle holds that a State may regulate the activities of its nationals when they are abroad. Although contentious, the passive personality principle (also known as ‘victim jurisdiction’) holds that a State has jurisdiction over acts committed in foreign States against its nationals; it is primarily used within the context of terrorist offences. Similarly, the protective principle holds that a State can exercise its jurisdiction over foreign nationals which have committed acts affecting a vital (security) interest of the State.

Besides these four principles there is also the possibility of universal jurisdiction. Under universal jurisdiction, a State is allowed to exercise its domestic jurisdiction over crimes committed by foreign nationals against other foreign nationals in foreign territory. However, universal jurisdiction can only be exercised over crimes which are of interest to all States, such as slavery, piracy, torture, war crimes, crimes against humanity and genocide. It is also possible for States to conclude treaties including provisions for universal jurisdiction (for example treaties dealing with the topic of terrorism); however, since this jurisdiction only applies to those parties which have ratified the treaty, this form of jurisdiction is known as ‘quasi-universal jurisdiction’.

Over the past century particularly the U.S. has (controversially) availed itself of its right to extraterritorial jurisdiction over acts committed abroad which it deemed had a substantial and harmful effect within the United States; this is known as the effects doctrine.

Abduction

Abduction is also known as ‘extraordinary rendition’; it involves the kidnapping or seizure of a person currently residing in a foreign jurisdiction for trial within the domestic jurisdiction of another State. It is a breach of both local and international law, particularly international law regarding human rights (given that it violates the security of the person and the principle that each person should receive due process). One of the most famous abductions under international law is that of Adolf Eichmann by Israeli agents in 1960, after which he was trialled in Israel for crimes committed during the Second World War.

Because abduction is illegal under international and domestic law, it is often the question whether the courts of the abducting state will find the case admissible or accept jurisdiction over it.

Chapter 5. The law of treaties

The topic of treaties is one of the most important within international law. The primary document codifying treaty law is the Vienna Convention on the Law of Treaties 1969, which is generally accepted as a statement of customary international law and thus binding upon all States (even those which have not ratified it). It is also generally accepted as an accurate interpretation of the status of treaty law before 1969. Any reference to articles in this chapter, unless otherwise stated, refers to the 1969 Vienna Convention.

There are several types of treaties:

• Bilateral: concluded between two or more States

• Multilateral: concluded between three or more Sates

• Plurilateral: concluded between a number of States with an interest in a particular issue

• Constituent: provides for the establishment and regulation of an international organisation, such as the U.N.

• Universal: applies to all States

• Regional: applies to States within a certain region

What is a treaty?

The definition of ‘treaty’ is given in Article 2(1)(a) of the 1969 Convention:

(a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

A number of requirements for a treaty can thus be discerned:

• ‘Concluded between States’: treaties can thus not be concluded between States and multinationals or international organisations (although the legally binding nature of agreements between States and the latter is governed by the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations 1986).

• ‘in written form’: this requirement is not restricted to a particular written form, although it is usually printed or typed

• ‘governed by international law’: a treaty must be seen by the contracting States as creating a legally binding obligation under international law; this intent can be discerned from the text of the treaty or the manner in which it was concluded.

• ‘embodied in a single instrument or in two or more related instruments’: although treaties do usually remain within the body of a single instrument rather than multiple texts or instruments.

Importantly, the name of an instrument does not necessarily indicate its status under international law; even if an instrument is called a ‘treaty’ does not mean that this is indeed the case. It is also not necessary for the instrument to be signed, as this is not included within the definition of the 1969 Convention.

MOUs (Memorandum of Understanding) and agreements under domestic law

A number of non-treaty instruments are known by the collective name of MOUs, or Memorandum of Understanding. These treaties are usually used to convey the understanding of the parties involved rather than to create an obligation under international law. One can usually tell whether an instrument is an MOU or a treaty by looking at the language used within it. Treaties usually contain terms like ‘agree’, ‘shall’, ‘undertake’, ‘obligations’, ‘rights’ and ‘enter into force’; MOUs usually contain terms such as ‘will’, ‘come into operation’, or ‘come into effect’.

One of the main reasons to choose an MOU over a treaty is for reasons of confidentiality, particularly when agreements relate to issues which must be kept confidential, such as in the field of defence.

The only point at which an MOU can be come legally binding is if a State relies upon the statements made by another State to its detriment; the former can estop the other State from recanting its statements, making it liable for any detrimental consequences that the other State experiences.

In some cases States will also choose to conclude agreements under the domestic law of one State with each other, such as the concluding of a lease for the land of a foreign State’s embassy on the territory of another State.

Who can conclude treaties?

Treaties can only be concluded between subjects of international law, namely States and international organisations. Thus federations and overseas territories usually do not have the power to conclude a treaty, unless they are authorised to do so at a national level by the governing State.

States usually have delegates that sign treaties for them. If a person has been given the authority by the State to negotiate at a conference as an official representative of the State, they have been given ‘credentials’. With credentials a delegate can only negotiate the terms of the treaty and adopt its final act and terms. In order for a treaty to be signed, a representative must have been given ‘full powers’ by the State in question, which are defined in Article 2(1)(c) of the 1969 Treaty as:

[A] document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

A representative with full powers is still obliged to have specific instructions from the government of their State before they use any of their powers. A permanent representative at an international organisation may also be issued continuous full powers by the State, which are known as ‘general full powers’.

The process of the adoption, authentication of treaties and the final act

The adoption of a treaty does not signal that States have consented to be bound by the treaty in question. Depending on the type of treaty, a different number of total votes is needed for a treaty to be adopted. Bilateral and plurilateral treaties generally require a unanimous vote. Multilateral treaties generally require a consensus among the parties, or a two-thirds majority in favour of adoption (of which the number of abstentions from voting are not included in the total). Consensus has been defined in Article 161(8)(e) of the UN Convention on the Law of the Sea 1982 as “the absence of any formal objection”.

Adoption is often accompanied by the process of authentication, whereby a State checks the text of the treaty for any possible technical or translational errors. If the text of the treaty is authenticated then it means that it is the authentic and final version of the treaty.

The authoritative text of the treaty will often be accompanied by the final act, which details the proceedings of the conference. The final act is usually signed by each state which was involved in the negotiations; it can be signed by a representative with credentials. Signing a final act does not legally oblige a State to ratify the actual treaty.

Consenting to be bound

When a State consents to be bound by the treaty and the relevant treaty has come into force, that State is known as a ‘party’ to the treaty. If the treaty has not yet come into force, such a State is known as a ‘contracting State’.

Article 11 of the 1969 Treaty describes the various ways in which a State can express its consent to be bound:

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

The text of a treaty usually implies in what ways States can express their consent; if this is not the case, it is usually implicit how this will occur. The most common way for States to express their consent is through signature; signature is usually only available to a certain date, after which States may only accede to the treaty. The exchange of instruments specified in the article usually involves the exchange of letters or notes between States.

Ratification is specified by Article 2(1)(b) of the 1969 Treaty as an “international act […] whereby a State establishes on the international plane its consent to be bound by a treaty”. Ratification does not yet make a State legally bound by a treaty; this only occurs if and when it enters into force. The process of ratification is usually required because States are obliged to adjust their domestic legislation for it to be in line with the contents of the treaty; this takes time, and thus it would not be possible for a treaty to immediately enter into force after a State consents to be bound by it. An instrument of ratification can only be signed by a person with full powers or the Head of State, head of government or foreign minister. Ratification is also sometimes known as the ‘acceptance’ or ‘approval’ of a treaty.

When describing the process of the adoption and ratification of treaties, it is best to avoid the term ‘signatory’ or to say that a State has ‘signed up to’ a treaty, as such phrases are unclear about the precise status of the treaty for the State.

Before a treaty enters into force, Article 18 requires that a State “[refrains] from acts which would defeat the object and purpose of a treaty” until the treaty enters into force or until the State has specified that it does not intend to eventually become a party to it. This requirement does not imply that the State that has ratified the treaty is not allowed to commit acts which would be illegal under the new regime yet to be created by the treaty; it merely implies that it should not undertake any acts which would have an effect on its ability to conform with the treaty once it has entered into force. It is also possible for a State to recant its consent to be bound by the treaty.

Reservations

The term ‘reservation’ is defined in Article 2(1)(d) of the 1969 Treaty as meaning a “unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. It is only possible for a State to have reservations to multilateral treaties, given that bilateral treaties require the full consent of both parties (as is also generally the case for plurilateral treaties or if the treaty is a constituent treaty of an international organisation). Reservations are also often more necessary in the context of multilateral treaties, given the large number of ratifying States, each with different governmental systems and cultures.

Reservations are not incredibly common (the acceptance of reservations to treaties was only accepted after a 1951 ICJ advisory opinion on reservations to the 1948 Genocide Convention), and, when they do occur, are generally accepted by the other parties to the treaty. Article 19 of the 1969 Treaty proclaims that there are three types of reservations which are expressly prohibited, stating the following:

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

1. 1. 1.  the reservation is prohibited by the treaty;

      2. the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

      3. in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Article 19(c) is known as the ‘compatibility test’; as treaties have become much longer and more complicated in recent years, it has become increasingly difficult to ascertain the ‘object and purpose’ of a treaty; State practice is inconclusive on the issue. This is further complicated by the fact that there are no regional or international bodies which are authorised to determine the ‘object and purpose’ of a treaty.

Reservations must be accepted by other States if the relevant reservation is to be legally binding in the relations between the two States, as is specified in Article 21(1) of the 1969 Treaty. Reservations can also be objected by other States because of legal reasons or reasons of (political) policy.

Entry into force

Article 24 of the 1969 Treaty provides at what stage a treaty enters into force for a State that has consented to be bound by it:

1. 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

   2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.

   3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides.

   4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text.

There are a number of possibilities in which these provisions can be filled in, entailing that a treaty can enter into force:

• On the date that is agreed upon in the text of the treaty (this is usually twelve months in the case of multilateral treaties

• When all States involved have signed the treaty

• When all States involved have ratified the treaty

• When a particular group of States has ratified the treaty

• When a minimum amount of states have ratified the treaty

• When instruments of ratification have been exchanged

• When each State accepts that the requirements for ratification have been met, and lets the other involved State(s) know by method of a note

It has become increasingly common to establish preparatory committees (so-called ‘prepcoms’) before the date of entry into force of a treaty, in order to ensure that all arrangements have been made allowing the treaty to enter into force.

Treaties and domestic law

Treaties are not necessarily part of the domestic law of a State once they have entered into force, given that they operate within two different legal spheres (namely at the international and the national level). However, given as most of the rights or obligations within a treaty relate to natural or legal persons, it is often necessary for a treaty to be incorporated into a State’s domestic legal system in line with the principle of pacta sunt servanda. This principle is described in Article 26 of the 1969 Treaty, which states that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”. Similarly, Article 27 – the corollary of Article 26 – states that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

There are two different constitutional approaches to creating domestic legal provisions or enforcement mechanisms in order for the domestic legal system to be in line with a treaty which the relevant State has consented to be bound by. Scholars generally make a separation between ‘dualistic’ and ‘monistic’ approaches.

The dualist approach states that treaties have no special status under the constitution, and that they cannot create any rights or obligations – this can only be done by the creation of new legislation. This approach reflects the separation of power between the executive and the legislature. The monistic approach, on the other hand, states that the provisions of a treaty automatically become part of domestic law if they are in line with the constitution and the State in question has consented to be bound by the treaty. Specific legislative adjustments however remain necessary in the majority of cases.

Of course, in practice, no constitutional system is purely dualistic or monistic; the best example of the former is United Kingdom; the best example of the latter is Switzerland. An example of a mixed system is that of the United States.

Territorial application

Most treaties do not explain what the extent of their territorial scope, but generally a treaty is applicable to the entire territories of its parties, unless the parties have established a different intention as to the treaty’s territorial application. This intention can either be established by territorial extension clauses within the text of a treaty or by a State making a declaration upon ratification or signature of a multilateral treaty as to its territorial application within its territory, such as in the case of overseas territories or federal states.

Successive treaties and the interpretation of treaties

In some cases it is possible that several treaties on the same subject matter are concluded; often if both treaties are multilateral, it is likely that the treaty will have different parties, which gives rise to conflicts. These problems can be resolved by Article 30 of the VCLT or by including a ‘conflict clause’ expressly within the body of the treaty.

Treaties can often become ambiguous due to the fact that they represent the reconciliation of diverse interests of a great number of parties. To resolve the problems of the inherent ambiguity of treaties, the 1969 Treaty includes a number of express articles on the interpretation of treaties, Articles 31 and 32, which have been interpreted by the ICJ as being customary international law.

Article 31 provides the general rule of interpretation for treaties:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

The first paragraph states that the interpretation of a treaty is not preferential to a particular method, such as the ‘textual’ (‘literal’) approach, which focuses on the precise meaning of the terms of the treaty, or the ‘teleological’ (‘effective’) approach, which focuses on the object and purpose of the treaty (as possibly intended by the parties or drafters). This is important because to determine the ordinary meaning of the words of the treaty, one must also know the object and purpose of the drafters, and vice versa. Paragraph 1 also establishes that a treaty must be established in ‘good faith’, in pursuance of the principle of pacta sunt servanda. Thus one should not interpret a treaty in such as way which would be unreasonable in light of the rest of the treaty.

The second paragraph of Article 31 establishes the ways in which one must establish the context of a treaty. To establish this context, it is important to look at the treaty in its entirety –thus including its title, preamble, and annexes, or any clear expressions made by the parties. Paragraph 3 establishes that in addition to the context one must also take note of any subsequent agreements or practice of State parties, in which the latter must be consistant and accepted by all parties to the treaty. Paragraph 3 also establishes that one must take into account any relevant rules of international law in the interpretation of a treaty, which may be rules accepted at the time the treaty was concluded (known as the ‘inter-temporal rule’) or contemporary rules of international law.

Article 32 determines the acceptable means of supplementary interpretation:

• • Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

• • • (a)  leaves the meaning ambiguous or obscure; or

    • (b)  leads to a result which is manifestly absurd or unreasonable.

Supplementary means of interpretation may be used to either confirm an interpretation resulting from Article 31 or to determine the meaning of a treaty if the latter proves ‘absurd or unreasonable’. The preparatory work referred to in the article is also known as the travaux préparatoires of the treaty. Nevertheless, the travaux will only be valuable if they are authentic and available in their entirety insofar this is possible. Other possible supplementary means of interpretation include reading into what terms seem to be implied by the text or purpose of a treaty, or rules dictating common sense or grammatical rules.

Amendment of treaties

Amending multilateral treaties often produces great difficulties; in many cases, because of these difficulties, amendments will create dual treaty regimes between those parties that do and don’t accept the amendment. Because of these difficulties the majority of treaties often have amendment mechanisms built into the text of the treaty.

Useful amendment mechanisms will often include a number of elements:

• The number of votes needed to put an amendment up to vote, and the number of parties necessary to constitute a majority in order to adopt the amendment

• The number of parties needed to ratify or accept the amendment before its entry into force (and whether the amendment is to be adopted or ratified)

• Whether amendments are binding even upon those parties which have not accepted it – this is simultaneously the most important issue

Duration and termination of treaties

If a party to a bilateral treaty wishes to withdraw from it, it may choose to denunciate the treaty; if this is done lawfully, the bilateral treaty will be terminated. In the case of multilateral treaties, this process is somewhat different: a party may choose to withdraw from a treaty; following a withdrawal, the treaty will remain in existence given that there are more than two parties.

Often treaties contain specific provisions which address the topic of the duration and the termination of treaties, with a number of variations:

• Indefinite duration with unconditional right to terminate

• Indefinite duration with conditional right to terminate

• Duration with conditions on termination

• Comprehensive clauses in which a regime is established whereby parties can evaluate after a certain time-period whether they want to terminate or withdraw from the treaty

It is always possible for a party to a treaty to terminate or withdraw from it if there is consent from all the other parties to the treaty. If another party to the treaty has violated its obligations, this also provides grounds for withdrawal on grounds of material or fundamental breach of a treaty, as recognised in Article 60(1) of the 1969 Treaty. If it is no longer possible for a party to perform its obligations under a treaty – for example, if an object central to its execution thereof is missing – then this is also viable grounds to withdraw from a treaty, as is recognised in Article 61(1) of the 1969 Treaty. In exceptional cases parties may be allowed to withdraw from a treaty due to a fundamental change in circumstances (also known as rebus sic stantibus, a principle recognised in many domestic jurisdictions). Similarly, a treaty may no longer be in force upon parties because it has become obsolescent and the regime has thus fallen into desuetude.

Nevertheless, given that it has become more common in recent years for treaties to include provisions on withdrawals, it is more likely that a withdrawal from a treaty will not be excepted unless it is mentioned within the body of the treaty. Several categories of treaties are also unlikely to recognise withdrawals or denunciation by virtue of their nature, such as territorial treaties, disarmament or peace treaties, human rights treaties, or treaties establishing a permanent regime.

It is unclear whether the severance of diplomatic or consular relations or the outbreak of hostilities between parties are valid grounds for the withdrawal from a treaty by one of the parties; it is generally only likely to be accepted if the subject of the treaty can no longer be viably practiced during a time of open hostilities.

Although treaties are only very rarely withdrawn from on the grounds of invalidity (given that it is generally presumed by the nature of drawing up a treaty that it is valid in the eyes of the parties), the 1969 Treaty does provide for a number of grounds of invalidity upon which a party to a treaty may decide to withdraw from it, and are listed in Articles 47-53.

The depositary

Depositaries are only necessary for multilateral treaties, and ensure that the formalities of concluding a treaty proceed as planned and are properly recorded. They can be a State or an international organisation; one of the most prodigious depositaries is the UN Secretary-General, who has been the depositary of more than 552 multilateral treaties. Depositaries have a duty to act impartially; their functions are listed in Article 77 of the 1969 Treaty.

Registration and publication

According to the UN Charter, all treaties and international agreements must be registered with the Secretariat and thereafter published. The most important rules for registration, as found in the UN Treaty Handbook, are that a treaty cannot be registered until after its entry into force and that any subsequent changes must also be registered. The registration of a treaty or international agreement (or the lack thereof) does not, however, have any legal effect on its status, although it can sometimes be invoked in favour of the status of an agreement as a treaty.

Treaties registered with the Secretariat are published in the UNTS (UN Treaty Series) once they have entered into force. It is always handy to know the registration number of a treaty when one is trying to find it in the UNTS, as this will make the search much easier. Many countries also have their own treaty series which contain the treaties that the State has signed.

For research purposes, here are a number of useful treaty text sources:

• International Legal Materials (ILM)

• Lauterpacht Research Centre for International Law

• The electronic publications of the American Society of International Law

• Australasian Legal Information Institute

• Treaties between 1648-1919 can be found in the Consolidated Treaty Series (CTS)

• Treaties between 1919-1946 can be found in the League of Nations Treaty Series (LNTS)

• International Law Reports (ILR)

• Bowman and Harris’ Multilateral Treaties, Index and Status

• Treaties and other International Acts Series (TIAS)

Chapter 6. Diplomatic privileges and immunities

The Vienna Convention on Diplomatic Relations 1961 is one of the most authoritative statements within international law on the law of diplomatic relations. It is vital in the creation of diplomatic missions between States and the protection of nationals, as well as the privileges and immunities accorded nationals working within diplomatic missions. Unless otherwise stated, references to articles in this chapter refers to the 1961 Vienna Convention.

Diplomatic relations and permanent diplomatic missions

The 1961 Convention recognises that to establish a diplomatic mission in a State requires the permission of both the sending and receiving States, which must both be sovereign States. Diplomatic missions are usually known as embassies, although they can go by other names such as high commissions, in the case of Commonwealth States. Diplomatic relations do not always need to be concluded via permanent diplomatic missions, however.

Article 3(1) describes non-exhaustively the functions of a diplomatic mission:

(a)  Representing the sending State in the receiving State;

(b)  Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

Diplomatic missions now often also perform consular functions, and sometimes even commercial activities such as tourism.

A diplomatic mission has various members, including the head of the mission, the diplomatic staff, and administrative, technical and service staff. The head of the mission and the diplomatic staff are known as ‘diplomatic agents’ and have the most privileges and immunities among the members of the mission. Diplomatic agents should be nationals of the sending State except in exceptional situations. The head of mission must be accepted by the receiving State; their appointment is obtained via the agrément of the receiving State; the other members of the mission can be freely appointed by the sending State, although all appointments and removals should be notified in advance to the sending State. Importantly, appointment as a diplomatic agent does not guarantee diplomatic immunity, which must be established on a case by case basis.

A receiving State has the absolute power to demand the removal of any member of the diplomatic mission of a sending State: diplomatic agents are told that they are persona non grata; other members of the staff are said to be ‘not acceptable’. This right is laid down in Article 9 of the 1961 Convention; no reason needs to be given for the withdrawal, although reasons are often given. Ultimately, Article 9 is not often used in practice and if so it is done most often for political reasons.

The premises of the mission and inviolability

The premises of the mission comprise all of the land which is used by the diplomatic mission. Usually the premises are at the seat of government of the receiving States. The receiving State is expected to provide assistance in obtaining and facilitating the activities of the mission.

The premises are not ‘foreign soil’; rather they enjoy inviolability. Agents of the receiving State can thus not enter the premises unless they have obtained consent from the members of the mission to do so. This inviolability is granted on the grounds that the mission must be free from outside interference and that it must be able to grant protection to those that need it. Inviolability of diplomatic premises persists even in times of emergency, contrary to consular premises (unless it is clear that there is an immediate danger to human life). It is also extended to the documents and archives of the mission, as is stated in Article 24.

The inviolability of these documents is indefinite, given that it is not removed even if diplomatic relations between the two States has been severed or if the mission premises have been closed. The only moment at which inviolability can be removed is if a member of the mission has communicated its contents to a person outside the mission within the scope of his professional capacity. Similarly, the means of transport of the mission are exempt from search, requisition, attachment or execution, as stated in Article 22(3).

It is also not possible to present court summonses or arrest warrants to members of the mission. Similarly, as is stated in Article 22(3), the premises of the mission are immune from the jurisdiction of local courts and thus, for example, cannot be searched. Nor can the bank account of the mission be used in the execution of a judgement against a mission.

The receiving State has the duty to protect the mission from intrusion or damage (Article 22(2)), as well to prevent disturbance of the peace of the mission and impairment of its dignity (Article 22(2)), an example being loud or fear-inducing protests that obstruct entry and exit to the mission. It also has a duty to protect the inviolability of the premises and the archives and documents of the mission, as well as the freedom of movement of the members of the mission throughout its territory (Article 26).

Article 27(1) also allows for freedom of communication for members of the diplomatic mission. This freedom is granted for all official communications of the mission, and thus for communications between the mission and the sending State, other missions of the sending State or those of other States, the nationals of the sending State, as well as international organisations. The members of the mission are however limited in the means they can use to communicate with third parties; coded and ciphered messages are only allowed in communications with the government of the sending State and other missions and/or consulates of that State.

Correspondingly, Article 27(1) also grants inviolability for all official correspondence of the mission, meaning, for example, that it cannot be used as evidence in a court of the receiving State. An important part of securing this right is the diplomatic bag as a means to communicate securely between a mission and a sending State. The diplomatic bag remains relatively important, even in the age of electronic communication. These diplomatic bags are usually made of a form of sturdy, woven fabric, but can also be freight containers used to transport large or heavy items. Diplomatic bags must be marked as such, with international practice usually dictating a number of requirements: firstly, the bag must be sealed with the official seal of the sending State or that of the mission; it must have a label which clearly states the intended recipient of the bag, namely the mission or the foreign ministry of the sending State. The bag must only be used for diplomatic documents or items intended for official use (although if it contains prohibited items that will not remove its status as a diplomatic bag).

The bag must never be opened by the receiving State, nor must its passage be impeded in any way (even though some States will sometime claim that they have the right to do so). The only exceptions to this rule is if the receiving State genuinely believes that the bag contains a human being (whether dead or alive) or explosives of some sort. A diplomatic bag may generally be scanned at an airport, but if the scan indicates that the bag contains prohibited items, such as guns, then the State is not legally in a position to open it, nor to take any form of action to impede its progress.

Articles 27(5)-(7) provide immunity for three types of diplomatic couriers whose job it is to accompany the diplomatic bag to its point of destination:

• A full-time diplomatic courier, who enjoys personal inviolability

• An ad hoc courier, who only enjoys immunity during the transit of the bag

• The captain of a commercial aircraft, to whom the diplomatic bag is entrusted (and who is not a diplomatic courier)

Finally, according to Article 23, the premises of the mission are also exempt from any kind of taxation by the receiving State, except for ‘specific services rendered’ which are beneficial to the mission such as street maintenance. Nor does the exemption hold if the taxes are required to be paid to individuals of the receiving State with which the mission has entered into a contract with.

Personal inviolability

Article 29 provides for the personal inviolability of diplomatic agents. These agents are not allowed to be arrested or detained by the police of the receiving State unless there are extenuating circumstances, such as their endangering of other people in their surroundings or drunk driving. The receiving State must take all appropriate steps to make sure that the personal integrity and freedom of the agent is protected, although what is appropriate is of course case-specific. Article 30(1) ensures the inviolability of the residency of the agent, even if it is a non-permanent residency such as a hotel room. The property, correspondence and private papers of the agent are also inviolable, as is stated in Article 30(2).

Diplomatic immunity

Diplomatic immunity is different from State immunity as it is awarded to individuals, namely the members of the diplomatic mission. Diplomatic immunity ensures that a member of the mission is immune from the criminal jurisdiction of the receiving State, as defined in Article 31(1). There are a number of exceptions to this rule, also provided in Article 31(1):

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Nor can a diplomatic agent give evidence in court unless the sending State waives his immunity purely for the purpose of testifying. If a person claims diplomatic immunity it is their responsibility to prove it, not that of the receiving State; merely the issuance of a diplomatic passport is not enough as such to prove the granting of diplomatic immunity.

It is also important to remember that immunity does not mean impunity; the person with immunity can still be charged at a later date for any crimes or insurance claims if the sending State waives his immunity or if they have lost their immunity for any other reason. It is also possible for an agent with immunity to be recalled to their sending State in order that they can be tried from crimes committed in the receiving State. Immunity can only be waived by the sending State, not by the agent enjoying the immunities; such a waiver must be done expressly, and cannot be implied.

Immunity also carries with it a number of other exemptions:

• Exemption from social security

• Exemption from taxation

• Exemption from personal services (such as jury duty or military services)

• Exemption from customs duties (for both official and personal items), with the exception of the import of prohibited goods

• Exemption from inspection of baggage as customs (unless expressly exempted by Article 36(1)

With regards to exemption from taxation, there are a number of specific exemptions from the more general exemption from taxation, as stated in Article 34:

• (a)  Indirect taxes of a kind which are normally incorporated in the price of goods or services;

• (b)  Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

• (c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;

• (d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

• (e)  Charges levied for specific services rendered;

• (f)  Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23.

Immunities and privileges of non-diplomatic third parties

Unless they are nationals of the receiving State, the family or household of the diplomatic agent enjoy the same immunities and privileges. Who is included within the family of a diplomatic agent often depends on the culture of the sending State: does it include non-married or same-sex partners? Children who have come of age? Polygamous unions? The immunities of members of the family of the diplomatic agent do not present a bar for them to work in the receiving State during the posting of the diplomatic agent, although some States often argue that this is the case.

Similarly, Article 37(2) states that administrative and technical staff of the diplomatic mission also possess the same immunities and privileges as that of a diplomatic agent, as set out in Articles 29-36. Thus they also enjoy immunity from criminal prosecution and personal inviolability. However, members of the A&T staff only receive civil and administrative immunity for official, and not personal acts. Nor do they enjoy unlimited customs privileges, with privileges only extending up until the first year of residency at the latest.

Article 1(g) of the Convention defines service staff as “the members of the staff of the mission in the domestic service of the mission”, such as drivers, cooks or gardeners. These staff are employed by the sending State. They enjoy less immunities than diplomatic agents and members of the A&T staff, given that they only have immunity over acts committed in the course of their duties. They do, however, also enjoy the waiver of tax and social security contributions.

Article 1(h) defines private servants as “a person who is in the domestic service of a member of the mission and who is not an employee of the sending State”. This group has the least privileges and is only exempt from paying taxes over their wages and social security contributions.

Privileges and immunities are also limited if a member of the mission is a national or permanent resident of the receiving State; in this case, a person will only enjoy immunity from criminal and civil jurisdiction of the receiving State and a limited amount of personal inviolability for acts committed in official capacity.

The end of diplomatic immunity and privileges

Immunity and privileges commence upon the moment that a person takes up their post at the mission; it is usually best to officially establish these rights at that point in the case that the person is criminally charged at a later date and invokes their immunity in such a manner that would cast aspersions on the good faith of this declaration. Immunity ceases once the member of the mission has stepped down from his post and departed the territory of the receiving State, although they remain immune for acts committed in official capacity even after the conclusion of their posting. Similarly, the family members of a former member of a diplomatic mission will also continue to enjoy these immunities until a reasonable period has expired in which they are able to leave the territory of the receiving State.

The functions of a diplomatic agent will cease once the sending State informs the receiving State, or otherwise in the situation in which the receiving State notifies the sending State that it no longer recognises the diplomatic status of the agent on the basis of Article 9(2). These functions obviously also cease upon the death of the agent, but will also cease if the sending State ceases to exist or if diplomatic relations are breached. Even if diplomatic relations between the two States decreases to such an extent that armed conflict erupts, the receiving State is still obliged under international law to secure the safe departure of the agent and his family.

Duties of the mission to the receiving State

Article 41 provides for a number of duties which the mission must accord to the receiving State:

• • 1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

  • 2.All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

  • 3.The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.

Special missions

The Convention on Special Missions 1969 defines a special mission as “a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task”. Special missions have existed longer than embassies and in their current incarnation complement the activities of permanent diplomatic missions. Examples in which special missions can be deployed is when two states wish to negotiate or discuss the terms of a treaty already in force, or one which is yet to be drawn up.

The status of members of special missions are not as well-established as those of permanent missions. Although the 1969 Convention grants, for the most part, the same rights and immunities to members of special missions as members of permanent missions are granted by virtue of the 1961 Convention, many of the rights are not applicable in the situation of special missions (thus spouses do often not accompany the members of the mission, as they would in the case of a permanent mission). To date, only thirty-eight parties have ratified the 1969 Convention. The only certain factor in the immunities and privileges the members of a special mission enjoy is that from civil and criminal jurisdiction of the receiving State, given that the State has consented to the presence of the mission. The majority of other rights largely depend on domestic legislation.

Consular relations

The 1963 Vienna Convention on Consular Relations is the primary international document guaranteeing the status of consular relations; it is supplemented and complemented by a number of bilateral consular conventions, as well as customary international law. Consular posts are generally subordinate to the local diplomatic mission of the sending State.

The establishment of a consular post must be done with the consent of the receiving State., as must the appointment of a consul-general, consul, vice-consul or consular agent. Article 5 of the 1963 Convention sets out the functions of consular posts:

• • (a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

  • (b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

  • (c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

  • (d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

  • (e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

  • (f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

  • (g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

  • (h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

  • (i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

  • (j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

  • (k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;

  • (l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State;

  • (m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.

The rights accorded to members of a consular post are not as extensive as those of a diplomatic mission. Its premises are inviolable, unless there is a disaster prompting ‘protective action’ by the receiving State, which, unlike in the case of a diplomatic mission, can be given without first obtaining the consent of the consul-general. This inviolability extends to the consular bag, although it may be opened if there are grounds to believe that it contains suspicious artefacts or articles not meant for purely official use. The consular bag can also be sent back to its place of origin on these grounds.

Consular officers are not exempt from appearing before criminal proceedings in the judicial authority of the receiving State (either as a witness or accused), although they cannot be arrested or detained (unless absolutely necessary). They retain civil and criminal immunity for acts committed in official capacity nonetheless.

Chapter 7. State immunity

State or sovereign immunity is well established within customary international law, although until the adoption of the 2004 UN Convention on the Jurisdictional Immunities of States and Their Property much of the jurisprudence on state immunity took place within domestic courts; the doctrine of State immunity remains much more uncertain than that of diplomatic immunity, and has undergone a great number of changes in the past fifty years. Unless otherwise stated, references to articles in this chapter are to the 2004 Convention.

State immunity can be invoked when a State wants to have immunity from the jurisdiction of the courts of another State when a person makes a foreign State a party to the proceedings in their State. State immunity is not necessarily incompatible with human rights. As with diplomatic immunity, state immunity only implies that a foreign court has no jurisdiction over the State unless its diplomatic immunity is waived.

As is obvious, a State is the recipient of state immunity. Article 2(1)(b) of the 2004 Convention defines a State as including the following:

• • (i)  the State and its various organs of government;

  • (ii)  constituent units of a federal State or political subdivisions of the State, which are

  • entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity;

  • (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State;

  • (iv) representatives of the State acting in that capacity;

Article 2(1)(b)(i)-(ii) are fairly self-explanatory; 2(1)(b)(iii) does not extend to public corporations (also known as para-statals). Article 2(1)(b)(iv) includes all natural persons which officially represent the State, such as the Head of State.

There are a number of exceptions to state immunity (although these exceptions are generally quite intricate and hard to understand)

• Consent of the State to waive immunity

• Commercial transactions

• Contracts of employment, as according to Article 11 of the 2004 Convention

• Torts, i.e. pecuniary compensation for certain acts of a foreign State in the territory of another which led to death, injury, or damaged or lost property

• Proceedings regarding intellectual or industrial property rights

• Proceedings on the right of a foreign State to ownership, possession and use of property in a forum State

• The immunity of ships, unless they were sailing for a governmental and non-commercial purpose

What is important with regard to commercial transactions is the definition of ‘commercial’. One can distinguish between acta jure gestionis transactions (commercial transactions which can be completed by anyone) and acta jure imperii transactions (those which can only be done by a State). One can then further distinguish between the nature and purpose of a transaction, whereby transactions with a public purpose are immune. Unfortunately, these tests are often not satisfactory, given that most commercial transactions of the State have a public purpose of some sort. The 2004 Convention does not choose for either the purpose or nature of a transaction as determining whether it is commercial or not, stating that a court must first look at whether the transaction is inherently non-commercial, and if this is not the case, it can look at its purpose, whereby the State can argue that the purpose of the transaction was non-commercial, even if it was commercial in nature.

There are also a number of exceptions to non-immunity with regards to contracts of employment. Thus immunity does exist in the following situations:

• • (a) the employee has been recruited to perform particular functions in the exercise of governmental authority;

  • (b) the employee is:

• • • (i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of

    • 1961;

    • (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;

    • (iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or

    • (iv) any other person enjoying diplomatic immunity;

• • (c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;

  • (d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;

  • (e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or

  • (f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.

The reason why there are so many exceptions to the rule is because the regime is rather patchy, due to it being a patchwork of the practice of various States.

Enforcement

The situation is complicated further by the fact that the consent of a State to the waiving of immunity – and thus the exercise of jurisdiction – by a foreign State does not necessarily entail its consent to measures of constraint, which provide the manner of enforcement of the jurisdiction of the foreign State. Thus situations can arise in which a claimant is not able to effectively bring a claim against a State despite a lack of immunity because there is no way to enforce the judgement.

Both before and during the judgement, governmental non-commercial property cannot be seized or arrested without the express consent of the owning State. Article 21 of the 2004 Convention provides examples of such State property, although the list is by no means generally accepted or exhaustive:

• • (a) property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences;

  • (b) property of a military character or used or intended for use in the performance of military functions;

  • (c) property of the central bank or other monetary authority of the State;

(d) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale;

• (e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.

It is of interest to note the special status of military property in this regard. While generally immune from execution, military property can lose this immunity in peacetime if the armed forces of a State are in the territory of a foreign State with its consent; whether or not this is the case is determined on a case-by-case basis by the States involved through SOFA (status-of-forces) or ad hoc agreement. SOFA agreements determine the manner in which civil and criminal jurisdiction will be exercised over such groups of armed forces.

Heads of State, heads of government, foreign ministers and other senior State officials

Heads of State can act in an official capacity (ratione materiae) or in a personal capacity (ratione personae). There are different approaches to the immunities of Heads of State for both capacities, but generally a Head of State can only be sued after they have left office, and then only for acts committed in their private capacity. It is unclear whether heads of government, foreign ministers and other State officials have the same immunities as the sovereign – given that the sovereign does not exercise as much power as it once did.

There has been interesting jurisprudence relating to the immunity of Heads of State and other senior State officials in international criminal proceedings. Thus the Arrest Warrant case, heard before the ICJ, held that a foreign minister could not be tried for criminal acts committed in his public capacity as a minister, but that he could be served with an arrest warrant once he was no longer a foreign minister for acts committed in his private capacity during his term. The Pinochet (No. 3) case, which was heard before the British House of Lords, determined that a Head of State does not have immunity for crimes committed during his period as Head of State.

Chapter 8. Nationality, aliens and refugees

It is important to establish the nationality of a person under international law, given that international law allows States to protect their nationals against other States (although this is not a duty, necessarily). When one is accorded the citizenship of a certain State, this implies that one can enjoy the full menu of civil and political rights within that State; it is usually the same as having the nationality of said State. Passports are of course an important aspect of citizenship of a particular State, although a passport does not conclusively determine whether a person is truly the citizen of a State.

Sometimes people can become dual nationals or acquire dual citizenship, meaning that they have the nationality of two (or even more) States, and each State has its own rules as to who is allowed to keep dual nationality. The International Covenant on Civil and Political Rights 1966 states in Article 12(2) that “[e]veryone shall be free to leave any country, including his own”. Similarly, Article 12(4) states that “[n]o one shall be arbitrarily deprived of the right to enter his own country”.

When one loses one’s former citizenship and does not gain a new form of citizenship from another State, one becomes stateless and thus an alien under the law of the State in which he or she is staying. Nevertheless, stateless people remain protected by human rights.

Whilst it is perhaps quite straightforward to determine the nationality of a natural person, it is quite hard to pin down the nationality of legal persons (such as companies), given that the physical embodiment of a legal person is not the legal person itself. Generally the nationality of a company is taken to be that of the State in which it is incorporated, registered, or in which the main office is. The foreign branches of a company will have the same nationality as that of the head office; subsidiary companies in foreign States will keep the nationality of the foreign State in most cases however. It is also possible to establish the citizenship of a company by looking at which State it has the closest ties to.

Other objects, such as ships and aircraft, have the nationality of the State of which they are flying the flag; it does not matter where the object was made or the nationality of those who own it. The nationality of ships and aircraft can easily be changed, given that one only needs to change the flag which one is flying.

Aliens

Aliens are those people which are not the nationals of a given State. As an alien, one does not always have the same rights as nationals; aliens can thus easily be deported or withheld from entering a State (unless, for example, one arranges a visa). They are also generally not allowed to vote or hold political office. Although an alien does not enjoy the rights that a foreign State’s citizens do, it is nevertheless subject to its law and jurisdiction; thus most aliens must pay taxes if they are residents of the State.

States are also allowed to expropriate the property of aliens, thus depriving the alien of their ownership of a piece of property in exchange for pecuniary compensation. There are a number of factors which must be met in order for expropriation to be in line with the principles of international law:

• It must not be done arbitrarily; i.e. it must be achieved through legislation

• It must be done for a public purpose

• There must not have been discrimination against the aliens

• There has to be appropriate compensation for the aliens whose property has been expropriated by the State

Aliens can be granted (or refused) asylum (often in the form of political asylum) by a host State despite objections from their original State. In this particular case, it is important to determine asylum from diplomatic asylum, which is the granting of protection by a diplomatic mission of a foreign State to a person fleeing from the authorities of his current State.

Refugees

There are two relevant international instruments addressing the status of refugees, which are collectively known as the Refugees Convention: the Convention relating to the Status of Refugees 1951, and the 1967 Protocol to the Convention, which extended the former’s scope.

In Article 1A(2) of the Convention, a refugee is defined as a person who:

• • [O]wing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out- side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Refugees are a distinct category from what are known as ‘displaced persons’ who seek asylum from another State or ‘internally displaced persons’ (IDPs), who are still within the territory of their own State; confusingly, refugees are often known as ‘asylum-seekers’.

The status of a person claiming to be a refugee should be examined by the State in which the claim to being a refugee was made, something which often happens at airports or seaports (or once a ship has entered a State’s territorial sea). A refugee does not have to lawfully enter the State in order to submit a claim to refugee status. Once a claim has been made, a State cannot turn a claimant away without first examining whether they indeed rightfully possess refugee status on the grounds of the non-refoulement principle. Even though a State is not obliged to grant refuge to those that have claimed refugee status, it is obliged to not send them on to a third State in which it is likely that they would be persecuted and their life and freedom threatened.

There are a number of exceptions to refugee status listed in the Refugees Convention, which notes in Article 1, Sections C to F, that:

• • C. This Convention shall cease to apply to any person falling under the terms of section A if:

    • (1)  He has voluntarily re-availed himself of the protection of the country of his nationality; or

    • (2)  Having lost his nationality, he has voluntarily re-acquired it; or

    • (3)  He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

    • (4)  He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

    • (5)  He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

    • (6)  Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

    • convention and protocol 15

  • D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

  • When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

  • E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

  •  

  • F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

    • (a)  he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

    • (b)  he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

    • (c)  he has been guilty of acts contrary to the purposes and principles of the United Nations.

A refugee may also be removed from a country if a State has reasonable grounds to believe that they are a threat to the national security or individual liberty of the State and its nationals, subject to the limitations of such practices by human rights norms.

Chapter 9. International organisations

There are many different types of organisations, although they can be said to share a number of characteristics:

• They were established by a constituent instrument, most commonly a treaty

• The organisation must only extend its membership to States (or membership should primarily consist of States, with some other members with other international legal status such as non-recognised States or non-State entities)

• The international legal personality of the organisation must be separate from that of its members

• The members must provide the financing of the international organisation

There is a difference between membership and representation in an organisation; representation concerns which entity is justified to represent a State within the international organisation concerned (a prime example being the question as to who is allowed to represent China at international organisations such as the UN).

An international organisation has international legal personality in the manner that a State does; this status can be provided for in the constituent instrument of the organisation or can otherwise be inferred from the practice of the organisation. This international legal personality is separate from that of the member States. International legal personality allows international organisations to enter into treaties.

Immunities and privileges

The senior members of an international organisation also generally have some form of immunity and privileges, but only those which have a functional need for them in order to ensure their independence. International organisations sometimes also have some form of fiscal benefits, given that it would be unfair if one State would be able to tax the income of an organisation whose income is dependent on the contributions of other States. The immunities and privileges of an international organisation are generally laid down within its constituent instrument and are usually modelled after the General Convention on the Privileges and Immunities of the United Nations 1946 and the Convention on the Privileges and Immunities of the Specialised Agencies 1947. Another important treaty on the issue is the Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character 1975, although it has not yet entered into force.

Members of an international organisation are generally also accorded immunity from domestic jurisdictions by the constituent treaty of their organisation. The immunity of members (particularly senior members) entails that they cannot be arrested or detained and is granted because it is important that the members of an international organisation must be free to do and say what they think is important without fear of arrest. These immunities may only be waived by the organisation itself (or the State concerned). It is up to the organisation to determine what acts and functions attract immunity; this determination creates a presumption of immunity. On the grounds of this presumption it is up to the domestic courts to determine whether such immunity is truly necessary – if there are thus compelling reasons to state that a person does not have jurisdictional immunity it is possible that it can be waived by the courts also.

Dispute settlement

The constituent treaties of most international organisations provide for some form of internal dispute settlement if issues should arise about the interpretation or application of the organisation’s constituent treaty. The United Nations notably does not have a built-in procedure for the settlement of internal disputes; these disputes are usually solved by informal and often inconclusive (political) negotiations or by asking the ICJ for an advisory opinion on the matter. The UN Charter does provide for mechanisms to settle disputes between staff and the organisation, namely through its Administrative Tribunal and the ILO Administrative Tribunal.

Chapter 10. The United Nations, including the use of force

The United Nations came into being on the 26^th of June, 1945. The original members did not need to satisfy the same requirements for membership as is the case with aspiring new members; Article 3 of the UN Charter states:

• • The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.

In contrast, Article 4 states:

• • 1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgement of the Organization, are able and willing to carry out these obligations.

  • 2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

There are thus four requirements for an entity to become a member of the UN:

• It must be a State

• It must be peace-loving

• It must accept the obligations in the Charter

• It must be able and willing to carry out these organisations

Apart from the first requirement, most of the requirements for UN membership are subjective. When an entity becomes a member of the UN, it is usually presumed that it is a State; those entities which are not seen as States by certain members (e.g. Taiwan) will often not become members. They can, however, be granted observer status (e.g. Palestine), as can international organisations.

The process of acquiring membership is set out in Articles 4(2) and 18(2); Article 18(2) states:

• • Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions. (Emphasis added).

There are no specific provisions in the UN Charter which state whether a member can withdraw its membership from the UN; such a right can merely be implied by the actions of States. It is also hypothetically possible for a State to be removed from the UN; Article 6 states that “[a] Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council”. Similarly, Article 18 states that the General Assembly can vote on “the suspension of the rights and privileges of membership, the expulsion of Members”. Notwithstanding the option of expelling members from the organisation, it is more useful in practice to keep members within the fold as one can then exercise criticism and suspend certain rights within the organisation pending the correction of the behaviour of a rogue State.

Membership is divided into five informal groups:

• African

• Asian and Middle Eastern

• Eastern European

• Latin American and Caribbean

• Western European and others (WEOG)

These regional groups work together to coordinate their policies and nominate candidates for positions within certain bodies of the UN.

The UN’s principal organs

Article 7 lists the following bodies of the UN as its principal organs:

• The General Assembly (UNGA)

• The Security Council (UNSC)

• The Economic and Social Council (ECOSOC)

• The Trusteeship Council

• The International Court of Justice (ICJ)

• The Secretariat

Of these six, ECOSOC is no longer a principal organ of the UN, and the Trusteeship Council has since become defunct. Only the UNGA and UNSC can make legally binding decisions.

It is also important to consider the status of the United Nations’ so-called ‘specialised agencies’. These agencies are not a part of the UN, given that they have separate budgets and financial sources. They do, however, share the same approaches as UN organs and are considered to be part of the wider ‘family’ of the United Nations.

The General Assembly

The General Assembly provides room for debate within the UN. Each member of the UN is present within the General Assembly and is accorded one vote. Depending on the importance of the issue upon which is being is voted, either a two-thirds majority or a simple majority is necessary to pass a vote. Even though the UNGA is not meant to discuss the same issues as are currently being discussed in the UNSC, it does sometimes discuss issues in parallel with it. The resolutions of the UNGA are not legally binding, merely recommendations, except in certain exceptional situations or if the resolution refers to internal issues.

There are six committees of the UNGA:

• The First Committee (Disarmament and International Security)

• The Second Committee (Economic and Financial)

• The Third Committee (Social, Humanitarian and Cultural)

• The Fourth Committee (Special Political and Decolonisation)

• The Fifth Committee (Administrative and Budgetary)

• The Sixth Committee (Legal Issues)

These committees give recommendations to the UNGA, which are then usually adopted without any major changes. The Sixth Committee is tasked with drafting the annual report of the International Law Commission (ILC).

The Security Council

The UNSC has fifteen members; five of these are permanent and are known as the ‘P5’:

• China

• France

• Russia

• The United Kingdom

• The United States

The other ten seats are informally allocated regionally: three seats are given to Africa, two to Asia, one to Eastern Europe, two to Latin America and the Caribbean and two from the WEOG region.

The UNSC works in an informal, diplomatic manner, which is necessary for it to be able to conduct its business (which is often sensitive in matter) effectively. As such, the UNSC holds informal meetings to which the media and other States cannot attend with the entirety of the Council, or separate members hold smaller informal meetings with other members which share the same views. The resolutions of the Council are generally agreed upon unanimously, without the need for a vote; Article 27 details the voting procedures. These resolutions have legal effect (but only when they are made under Chapter VII of the UN Charter – non-binding recommendations are made under Chapter VI). Sometimes the Council also makes Presidential Statements, which will occasionally also have legal effect. As stated in Article 103 of the Charter, the members of the UN have obligations deriving from the Charter which override any other treaty obligations.

The UNSC is not allowed to create resolutions without first determining whether there is a threat to international peace and security, as stated in Article 39 of the Charter. To make this determination is to undergo an essentially political decision as to whether a resolution by the Security Council is truly necessary and whether it will change matters on the ground. If a resolution is intended to be legally binding, there will usually be reference to Chapter VII of the Charter – but not always. The number of Chapter VII resolutions has dramatically increased since the end of the Cold War.

The UNSC can take a number of measures, which can be divided into measures demanding, prohibiting, or authorising certain acts:

• Sanctions, such as:

• • Trade embargoes (e.g. on arms), one of the most frequently used measures of the UNSC,

  • Financial sanctions (such as the freezing of the assets of certain individuals)

  • The sequestration and impounding of assets

  • Flight restrictions

  • Diplomatic sanctions

  • The prohibition of the supply of weapons of mass destruction (WMD)

  • Compensation of those who have undergone loss or damages as a result of the actions of the offending State

  • The creation of international criminal tribunals, such as the ICTR and ICTY

The Security Council is not allowed to make measures under Chapter VII which call for the suspension of human rights, given that this would amount to a violation of ju cogens norms.

Charter amendment

Chapter XVIII discusses the ways in which the UN Charter can be amended, with Article 108 laying down the following requirements:

• • Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

Nevertheless, the Charter has only been amended on three occasions. Some of the most contentious proceedings seeking to amend the Charter are those that seek to change the status or size of the Security Council, given that members of the Security Council are part of the voting process and have a vested interest in not wanting to change their position.

Use of force

The use of force can only be condoned under international law in a very limited number of situations. Under Article 2(4) of the UN Charter, States are only allowed to use force within their own borders to restore peace and security. The use of force must always be in line with the norms of international human rights and humanitarian law (the law of armed conflict). States are not allowed to use force against other States, with Article 2(4) stating that:

• • All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

There are three situations in which the use of force is possibly lawful. The first is when the UNSC has authorised the use of force under Chapter VII and Article 42 of the Charter. This use of force can be done through intervention by a coalition of willing states, by interdiction, or by protecting civilians through the use of peacekeeping forces.

The second lawful use of force is in situations of self-defence, as stated in Article 51 of the Charter, which states that:

• • Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

In practice, the use of force for purposes of self-defence must fulfil a number of criteria:

• The use of force must be in reaction an imminent armed attack; it is thus possible to use force even before an attack has occurred if one has strong grounds to expect that an attack will soon occur.

• The use of force must be necessary – there can be no alternative course of action.

• The use of force must be limited to those actions which are absolutely necessary, thus barring reprisals or retribution.

• The use of force must be reasonable and proportionate to the threat or use of force which it is being undertaken against.

The final possible legal situation of the use of force is in cases of humanitarian intervention in situations that threaten international peace and security. This is the most controversial grounds that a State can invoke for the use of force, given that its good intentions can often be seen to be suspect. Even though humanitarian intervention without Security Council authorisation is ultimately illegal under international law, it is argued that it should be treated more leniently because it is morally correct. In any case, there are once again a number of informal requirements which must be met in order to authorise the use of force in such situations:

• The situation requiring the humanitarian intervention must be of an extreme and urgent nature

• The State responsible for those needing the humanitarian intervention must have shown that it is not going to deal with the issue, thus requiring the action of other States

• The Security Council has shown that it is unable to come to a decision on the issue, meaning that there is no lawful alternative for humanitarian intervention

• The use of force must only be used in as far as it is necessary; it must thus be proportionate and limited in geographical and temporal scope.

It is also possible that there is a developing norm with regards to the ‘responsibility to protect’ (R2P) of States towards the nationals of other States with regards to the protection of groups from genocide, war crimes and crimes against humanity. Nevertheless, R2P remains extremely controversial.

Chapter 11. Human rights

Human rights treaties came into existence within international law following the Second World War. Since then, they have expanded from being an issue of pure domestic enforcement (as was the case in somewhat separate nineteenth century documents such as the US Bill of Rights or the French Declaration of the Rights of Man and the Citizen) to a matter of which the promotion and protection is the concern of all States.

Nevertheless, human rights are usually framed of the rights of those people within the territory or jurisdiction of a State. Usually, human rights are only applicable to natural, rather than legal, persons. Human rights are the protection of these individuals against the State; they are invoked when the usual systems of public protection for the individual fail to do their job. Before one is allowed to invoke human rights before an international tribunal or court, one must first exhaust all possible and feasible domestic remedies.

Human rights treaties

Human rights treaties can be separated into universal and regional treaties. The majority of universal treaties has been created within the context of the United Nations. The 1948 Universal Declaration of Human Rights (which is not a treaty) laid the foundations for later human rights treaties.

The bodies within the UN tasked with drafting treaties are the ECOSOC, the Human Rights Council (HRC) and the Third and Sixth Committees. The ILO (International Labour Organisation), a specialised agency of the UN, has also create 190 treaties since its inception on the field of labour rights. The United Nations has created a number of specific and general human rights treaties over the years:

• Specific

• • Genocide Convention 1948

  • Refugees Convention 1951

  • Conventions on Statelessness of 1954 and 1961

  • Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1966

  • Convention on the Rights of the Child 1989

  • Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)

  • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1989

  • Convention on the Rights of Persons with Disabilities

• General

• • International Covenant on Civil and Political Rights 1966 (ICCPR) – one of the most influential treaties to date

  • International Covenant on Economic, Social and Cultural Rights (ICESCR)

There are four main regional human rights treaties:

• European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), established by the Council of Europe (COE) and overseen by the European Court of Human Rights (Ectopic) in Strasbourg. The ECHR is highly similar to the ICCPR; it is one of the most successful regional human rights treaties because of its effective enforcement mechanisms.

• American Convention on Human Rights 1969, established by the OAS (Organisation of American States) and overseen by the Inter-American Commission and Court of Human Rights in Washington, DC.

• African Charter on Human and Peoples’ Rights 1981, established by the AU (African Union, which was previously known as the OAU or Organisation of African Unity). The African Charter is different from the previous two human rights treaties in that it conceives of rights for ‘peoples’, as well as not only the rights of individuals, but also their duties.

• Arab Charter on Human Rights 1994. The Arab Charter is rather controversial, particularly for its restrictions on the freedom of belief, thought and opinion in Article 27.

The scope of human rights

There are a number of central civil and political rights:

• The right to life (Art. 2 ECHR, Art. 6 ICCPR), which rules that a person may not be arbitrarily deprived of their life but only in accordance with the law. The ECHR has thus abolished the death penalty; the ICCPR placed severe limits on its use.

• The prohibition on torture and inhuman, degrading or cruel treatment or punishment (Art. 3 ECHR, Art. 7 ICCPR)

• The prohibition of slavery and forced labour (Art. 4 ECHR, Art. 8 ICCPR)

• The right to liberty and security (Art. 5 ECHR, Art. 9 ICCPR), which holds that nobody may be deprived of their liberty unless it is by legal means.

• The right to a fair trial (Art. 6 and 7 ECHR, Art. 14 ICCPR)

• The principle that there should be no punishment without law (Art. 7 ECHR, Art. 15 ICCPR)

• The respect for private and family life (Art. 8 ECHR, Art. 17 ICCPR)

• The freedom of thought, conscience and religion (Art. 10 ECHR, Art. 19 ICCPR)

• The freedom of expression (Art. 10 ECHR, Art. 19 ICCPR)

• The freedom of assembly and association (Art. 11 ECHR, Art. 21 and 22 ICCPR)

• The right to marry (Art. 12 ECHR, Art. 23 ICCPR)

• The right to an effective remedy (Art. 13 ECHR, Art. 2 ICCPR)

• The prohibition of discrimination (Art. 14 ECHR, Art. 26 ICCPR)

• Freedom of movement (Protocol No. 4 ECHR, Art. 12 ICCPR)

• The right to free elections (Protocol No. 1 ECHR, Art. 25 ICCPR)

• The right to property (Protocol No. 1 ECHR)

• The right to education (Protocol No. 1 ECHR, Art. 13 ICESCR)

Qualification of rights

Not all human rights are absolute; they can sometimes be limited in the interests of protecting the rights of other individuals or the community at large. Qualifications to human rights provisions can only be made if their are in accordance with the law of a country; they must also be proportionate and necessary for the functioning of a democratic society.

If they so wish, parties to human rights treaties can also make reservations to the treaty, or derogate from it. Derogation from a treaty requires the presence of a public emergency; it must also be consistent with the other treaty requirements of the State. Certain rights cannot be derogated from however, such as the right to life, or the prohibition on slavery, torture, or cruel and unusual punishment.

Enforcement of human rights

Human rights are best enforced in a democratic society with an independent judiciary which can protect the human rights of individuals insofar as possible, thus limited the need for recourse to an international human rights court by citizens of a particular State. In order for an international court to be effective, there also needs to be an effective form of domestic legal machinery which can implement the decisions of the court in question.

The European Court of Human Rights is one of the most effective enforcement mechanisms of human rights. Cases can be brought to it by a single individual or a group of individuals, as well as legal persons such as NGOs. Even though the Court is sometimes criticised for being unrealistic or partial in its decisions, such problems cannot be avoided, given that they exist in every domestic court as well.

The ICCPR, on the other hand, does not have a court to enforce the rights contained within it. The Human Rights Committee is tasked with overseeing compliance with the ICCPR: new parties to the Convention must submit a report on their status of compliance with the ICCPR within their first year of membership; thereafter, parties must submit reports ever five years. Under the First Optional Protocol to the Convention, issued in 1966, it is also possible for individuals to issue petitions to the Committee regarding a breach of their human rights. This can only be done once all domestic possibilities have been exhausted and the case has not been heard before another international human rights procedure. The decisions of the Committee on these issues are however not legally binding and have no method of enforcement other than negative publicity for the violating State. Furthermore, not all parties to the ICCPR are parties to the First Optional Protocol. Similar treaty monitoring bodies exist for the CERD, CEDAW, the Torture Convention and the Rights of the Child Convention.

The Committee is also allowed to issue General Comments (also known as GCs), which are meant to provide guidelines to State parties in the interpretation of the Convention; although sometimes controversial, given that they are not issued within the context of a particular case, they can generally be considered as a trustworthy secondary source of international law.

Chapter 12. The law of armed conflict (international humanitarian law)

There is a variety of names for the laws governing the conduct of armed conflict: the law of armed conflict, jus in bello or international humanitarian law (IHL). IHL is applicable in all types of armed conflict, whether they were legally initiated or not or whether there was a declaration of war or not; jus in bello is thus separated from jus ad bellum (the laws on the use of force).

Sources of IHL

International humanitarian law can be divided into two parts, known as ‘Hague’ and ‘Geneva’ law. Hague law contains those treaties promulgated in the early twentieth century in the Hague on the lawful conduct of hostilities (particularly the Hague Convention of 1907). Geneva law contains those treaties that were created in the same period in Geneva, up until 1949, which govern the status of non-combatants in armed conflicts.

Even those States which are not signatories to IHL treaties are bound by the rules of the law of armed conflict; this is because IHL treaties are generally regarded as customary law. IHL treaties have repeatedly stated (as in the Martens Clause of the Hague Conventions) that customary international law is of paramount importance within the context of IHL.

Until quite recently, the majority of IHL only applied to international (i.e. between States) armed conflicts and not to internal armed conflicts. Additional Protocol II to the 1949 Geneva Conventions provided similar rules of IHL (in fact, almost identical) within the context of internal armed conflicts, although the protocol has been unable to be enforced until quite recently, with the advent of the international criminal tribunals in the Hague such as the ICTY and ICTR.

Provisions of IHL

There are a number of central principles within international humanitarian law:

• The limitation of the belligerent’s means to attack their enemy

• The principle of distinction between combatants and non-combatants

• The principle that all non-combatants are to be treated in accordance with their human rights – this includes prisoners of war and the sick, not only civilians

• The principle that attacks may only be directed at military targets or objectives, and not civilian targets

International humanitarian law expressly forbids the use of a number of certain types of weapons. Firstly, IHL holds that weapons must not cause unnecessary suffering; thus a number of early treaties forbade the use of asphyxiating gases (such as in WWI) and ‘dum dum’ bullets (bullets that expanded upon impact, spreading shrapnel throughout the body). A number of instruments and treaties are notable in this context, namely the 1868 St. Petersburg Declaration, the 1899 Hague Declarations, the CCWC, and Hague Convention IV, which included an annex on Regulations Respecting the Laws and Customs of War on Land. Other conventional weapons that have been made illegal under IHL are laser weapons and cluster munitions, as well as the indiscriminate use of land-mines.

There are also a number of rules relating to the use of nuclear, biological and chemical weapons (e.g. weapons of mass destruction or WMDs). Although IHL does not expressly forbid the use of nuclear weapons, it was the subject of a very important advisory opinion by the International Court of Justice (ICJ), namely The Legality of the Threat or Use of Nuclear Weapons. The use of gases and bacteriological methods of warfare has been explicitly prohibited by the Geneva Gas Protocol 1925, the Biological Weapons Convention 1972, and the Chemical Weapons Convention 1993.

International humanitarian law permits the execution of reprisals in certain situations. Such reprisals may consist of actions which are usually illegal under IHL; they can only be made in response to a breach of IHL from another belligerent to the armed conflict. The reprisal must be proportionate and not for purposes of vengeance – it must be a necessary element to stop the illegal actions by the other belligerent. The reprisal must furthermore not be directed at civilians.

Prisoners of war and mercenaries

Geneva law also has extensive provisions relating to the status and treatment of prisoners of war (POWs). Article 4 of the Third Geneva Convention delimits those who are eligible for POW status:

• • Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

  • (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

  • (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

    • (a) that of being commanded by a person responsible for his subordinates;

    • (b) that of having a fixed distinctive sign recognizable at a distance;

    • (c) that of carrying arms openly;

    • (d) that of conducting their operations in accordance with the laws and customs of war.

  • (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

  • (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

  • (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

  • (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

These categories were expanded by Additional Protocol I in 1977 in Articles 43 and 44 to include irregular or resistance forces, even if they do not carry distinguishing marks. The only requirement is that the group is under a form of effective control and are openly carrying arms. A mercenary, on the other hand, is not eligible for POW status. Mercenaries are defined in Article 47 of Additional Protocol I as:

• • [a]ny person who:

  • (a) is specially recruited locally or abroad in order to fight in an armed conflict;

  • (b) does, in fact, take a direct part in the hostilities;

  • (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

  • (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

  • (e) is not a member of the armed forces of a Party to the conflict; and

  • (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

AP I sought to criminalise mercenaries, although it has not had much effect to date.

Civilians, civilian objects and occupied territories

Civilians and civilian objects are protected by the Fourth Geneva Convention and Additional Protocol I. Belligerents must distinguish between civilians and non-combatants: thus civilians and civilian objectives must not be attacked unless such an attack was unavoidable or accidental. Civilians can be collateral damage in certain situations, if they are situated within a military objectives of which the destruction would provide a significant military or tactical advantage.

Certain rights are also provided for those within occupied territories (as well as parallel duties for the occupying power) in Section III of the Hague Regulations, the Fourth Geneva Convention and Additional Protocol I (Art. 61-78). The main duty of the occupying power to is ensure the safety of the populace and the public order of the occupied territory. The occupying power is allowed to try those who resist the occupying forces (although inhabitants of an occupied territory simultaneously have the power to resist in such a manner), but may not levy any new taxes not for the administration of the area, nor can he alter the law in such a way as to affect the legal rights of the populace. An occupying power is also not allowed to deport anybody from the occupied area.

The enforcement of IHL

All war crimes are subject to universal jurisdiction; one of the most comprehensive list of war crimes is provided in the ICC Statute. Following the conclusion of the Cold War, there has been increasing accountability for those who have committed war crimes, as is evident by the UNSC-set-up ICTY and ICTR, as well as frequent invocations by the Security Council urging belligerents to respect the rules of armed conflict.

Another important player within the enforcement of IHL is the International Committee of the Red Cross (ICRC). Its important status was recognised in Articles 10 and 11 of the Fourth Geneva Convention; the ICRC was in fact one of the main promoting parties of all of the Geneva Conventions. Its main preoccupation is the protection and care of POWs. It is also allowed to act as a Protecting Power within an armed conflict.

Chapter 13. International criminal law

Mutual legal assistance and extradition

Criminal trials with an international aspect often require the cooperation of numerous States in the apprehension and trial of the criminal(s) in question. Such cooperation is often laid down in multilateral or bilateral treaties on the topic of mutual legal assistance.

One such forms of mutual legal assistance is extradition, which is also known as rendition. Through the process of extradition, an accused or convicted person may be transferred to another State, either to commence their trial or to complete their sentence. Extradition usually occurs under the auspices of bilateral or multilateral extradition treaties, although it can also happen on an ad hoc basis if both States involved agree to the extradition. Extradition treaties usually apply to crimes which can lead to one or more years in prison. Most extradition treaties incorporate two central principles:

• The double criminality principle: the crime committed by the person to be extradited must be a crime in both States.

• The principle of speciality: extradition only occurs if the person in question will only be tried for those crimes with which they are currently charged with.

Whether or not a person will be extradited is up to the executive, although the judiciary can refuse extradition on legal grounds, such as the human rights of the person to be extradited (if there is, for example, a high likelihood that the accused will be tortured after he has been extradited). After extradition has been approved, it should take place between the police of both States. It is sometimes also argued that political offences are not subject to extradition; this is indeed the case in certain domestic jurisdictions, but not within international law. In any case, the definition of a ‘political offence’ is vague at best.

Because extradition can at times be a lengthy procedure, some States have created simplified extradition procedures through treaties or regional agreements. This usually occurs between States that have similar criminal legal systems. An example is the EU Framework Decision on the European arrest warrant and surrender procedures between Member States, which allows the judiciary to decide on matters of extradition, as well as removing the principles of double criminality and speciality.

Extradition can also occur by irregular means; this is known as ‘disguised extradition’, an example being the actions of the United States regarding suspected terrorists during the War on Terror. Even if both States in question agree to the disguised extradition – which usually takes place through deportation – such extraditions are contrary to international (and more often than not also domestic) human rights law.

International crimes

International crimes do not bear State responsibility but individual responsibility – thus the person who has committed such a crime can be individually criminal liable before a domestic or international tribunal. Although somewhat controversial, international crimes are generally accepted to have universal jurisdiction, meaning that any State can choose to prosecute an individual, without regard to the nationality of the victim or suspect or the location of the crime. International crimes are regarded as extremely serious; for something to be termed an international crime, it must be seen as damaging to every member or State of the international community.

There are a number of major, well-established international crimes:

• Piracy

• Slavery

• Genocide

• Crimes against humanity

• War crimes

• Aggression

Of these, the two oldest international crimes are slavery and piracy. Genocide was established as an international crime in 1948; the term itself was not invented until 1944 by Jewish historian Raphael Lemkin, in response to the Holocaust. It was the subject of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (‘the Genocide Convention’). Genocide is defined by the Convention as:

• • Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. 1. Killing member of the group

   2. Causing serious bodily or mental harm to members of the group

   3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

   4. Imposing measures intended to prevent births within the group

   5. Forcibly transferring children of the group to another group

The difference between genocide and crimes against humanity is that crimes against humanity need not be committed with the special mens rea requirement that the acts in question were committed ‘with intent to destroy’ a group in whole or in part. The crime of genocide thus has more stringent requirements.

Genocide invokes individual criminal responsibility for anybody who commits it, regardless of whether or not they have an official or diplomatic status. It does not, however, have universal jurisdiction.

Crimes against humanity needed to be committed in nexus with an (international) armed conflict in the early years of the development of international law; this nexus requirement has since disappeared and now it is accepted that crimes against humanity can also occur during peacetime. They concern collective and wide-scale violations of human rights.

The ICC Statute lists a number of crimes as crimes against humanity:

• Murder

• Extermination

• Enslavement

• Deportation

• Forcible transfer of population

• Imprisonment

• Torture

• Rape

• Sexual slavery

• Enforced prostitution

• Sterilisation

• Enforced disappearance of persons

Once again, in the context of the ICC, there are a number of objective requirements to establish that a certain act constitutes a crime against humanity:

• The acts must have been committed as ‘part of a widespread or systematic attack directed against any civilian population’

• The acts must have been ‘pursuant to or in furtherance of a State or organisational policy to commit such attack’

• The State or organisation must ‘actively promote and encourage’ the acts or attack

The crime of aggression is perhaps the least settled international crime; it was included in the charter of the Nuremberg International Military Tribunal, but has not been prosecuted since then or even after the end of the Cold War. The ICC will only be able to exercise jurisdiction over crimes against humanity once it has agreed on a definition (which occurred at the Kampala Conference) and consequently ratifies it.

Superior responsibility and superior orders

The charters of the early postwar tribunals provided that superiors are responsible for the acts that are committed by their subordinates. These provisions were modified slightly in the making of the Rome Statute (the founding charter for the ICC) so as to make superiors only responsible for those crimes committed by subordinates under their effective control. These acts must be those of which the superior knew, or should have known, that they were about to occur or had occurred. A superior can only be responsible for such acts if they consequently did not take all possible measures to prevent or repress them.

Almost all international criminal tribunals (i.e. Nuremberg, the ICTY and the ICC) deny the allegation that criminal acts committed pursuant to superior orders absolve the subordinate that committed the acts as absolved of guilt.

International tribunals

Since the end of the Second World War, a number of international tribunals (or bodies very similar in nature, if not form, to international tribunals) have been established:

• The Nuremberg International Military Tribunal (the Nuremberg IMT)

• The Tokyo International Military Tribunal (the Tokyo IMT)

• The International Criminal Tribunal for the Former Yugoslavia (ICTY)

• The International Criminal Tribunal for Rwanda (ICTR)

• The Special Court for Sierra Leone (SCSL)

• The Extraordinary Chambers of the Courts of Cambodia (ECCC)

• The Special Tribunal for Lebanon (STL)

• The International Criminal Court (ICC)

The most important of the immediate postwar tribunals was the Nuremberg IMT, even though it was a tribunal set up under the powers of condominium rather than a ‘true’ international court – what is most important is that it was not the exercise of victor’s justice (or at least not for the most part). The Nuremberg IMT established a number of tenets of international criminal law which remain vital to this day:

• Individual criminal responsibility for international crimes

• The criminalisation of aggressive means of warfare as a crime against peace

• Individual criminal responsibility for Heads of State or commanders, even if they did not personally commit any physical crimes

• The denial of the validity of the defence of superior orders

The ICTY was the first tribunal to be set up following the dissolution of the Soviet Union; it was created at the behest of the UNSC through Resolutions 808 (1993), and 827 (1993). Its seat is in the Hague. Article 1 of the Statute lays out the competence of the tribunal:

• • The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

Many at first doubted whether the ICTY would be a success, given that all of the accused were still within the former Yugoslavia (unlike the case at Nuremberg, where all accused had already been apprehended). It has nevertheless been one of the greatest successes of post-Cold-War international law, with 57 convictions. As of 2013, it is likely that the ICTY will conclude its business somewhere in the near future, possibly 2014.

The ICTY was followed up by the creation of the ICTR in 1994 in response to the Rwandan genocide. It was also established by the UNSC, through Resolution 955 (1994). Its seat is in Arusha, Tanzania. Article 1 of the Statute states the competence of the tribunal:

• • The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute.

The ICTR has not been as successful as the ICTY, as many of the suspects are still at large.

The SCSL was established through a treaty concluded between Sierra Leone and the UN in 2002. Its competence, according to Article 1 of its statute, is as follows:

• • 1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.

  • 2. Any transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organizations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State.

  • 3. In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons.

The SCSL is more limited in scope than the ICTY and ICTR as it is likely that there will not be more than twenty indictments. Its seat is in Freetown, Sierra Leone.

Unlike the other courts mentioned above, the ECCC is not an international tribunal: rather, it is part of the domestic criminal system of Cambodia. It was established by a treaty between the UN and Cambodia in 2003. The Chambers exist of Cambodian and international judges who share the bench and hear cases which contain accusations of genocide, crimes against humanity and grave breaches of the Geneva Conventions. Cases must be against those with senior responsibility in the government of the Democratic Kampuchea. Its temporal jurisdiction spans from 17 April 1975 to 6 January 1979. The Chambers are allowed to apply both international and Cambodian law in their judgements.

The STL was established by the UNSC through Resolution 1957 (2007) following the murder of former Lebanese Prime Minister Rafiq Hariri. Its seat is in the Hague and the bench consists of international and Lebanese judges. Its temporal jurisdiction spans from 1 October 2004 to 12 December 2005; the Court is required to focus on those crimes committed in nexus with the murder of Hariri and other senior or important political figures in Lebanon at the time.

The ICC is the largest international tribunal and the only truly universal international court (notwithstanding those States which have not accepted its jurisdiction). It was created following the conclusion of negotiations at the Rome Conference in 1998, which produced the Rome Statute, which is the statute of the tribunal. The Statute entered into force on 1 July 2002. All parties to the Statute are bound to arrest and surrender those individuals for which arrest warrants have been issued by the Court, even if the Party’s domestic legal system forbids the extradition of its nationals. The United States is one of the most persistent objectors to the ICC; it has concludes over one hundred bilateral treaties with other States precluding the extradition of its nationals from their territories (this may not be compatible with the Parties’ obligations under the Rome Statute).

Cases only come before the ICC if all domestic solutions have been exhausted; this is known as the ‘complementarity’ rule. A case is inadmissible in accordance with the rule of complementarity, if, according to Article 17(1) of the Rome Statute:

• • (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

  • (b)  The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

  • (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

  • (d) The case is not of sufficient gravity to justify further action by the Court.

‘Unwillingness’ is defined in Article 17(2). There are a number of other bars to the exercise of the Court’s jurisdiction: the principle of ne bis in idem, the fact that a crime may not have been committed before the entry into force of the Statute in the country in question. Furthermore, the accused must be older than 18 years of age.

The court has jurisdiction over the following crimes, as is stated in Article 5(1) of the Rome Statute:

• • The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

  • (a)     The crime of genocide;

  • (b)     Crimes against humanity;

(c)     War crimes;

(d)     The crime of aggression.

Genocide, crimes against humanity, war crimes and the crime of aggression are defined in the Elements of Crimes and in Articles 6, 7 and 8 of the Rome Statute. The Court’s jurisdiction is brought about by three possible ‘trigger mechanisms’, as laid out in Article 13 of the Statute:

• • The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

  • (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

  • (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

There are furthermore certain preconditions to the exercise of jurisdiction by the Court, defined in Article 12 of the Statute:

• • 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

  • 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

    • (a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

    • (b)     The State of which the person accused of the crime is a national.

    •  

  • 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

The ICC does not recognised Head of State or any other form of diplomatic immunity. There are several modes of individual criminal liability under the Rome Statute, which are stated in Article 25(3) of the Statute:

• • In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

  • (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

  • (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d)  In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

• • • (i)  Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

    • (ii)  Be made in the knowledge of the intention of the group to commit the crime;

• • (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

  • (f)  Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

Article 21 of the Statute provides a hierarchy of the applicable law for the Court:

• • 1. The Court shall apply:

    • (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

    • (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

    • (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

  •  

• 2. The Court may apply principles and rules of law as interpreted in its previous decisions.

•  

• 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

The Court’s jurisdiction is furthermore not bound by national statutes of limitations.

The ICC is a mix of common and civil law systems. Its procedures draw upon both traditions; in the courtroom, lawyers often come from the adversarial tradition of common law. Nevertheless, simultaneously judges have far greater leeway than in the common law system, making the procedures of the Court thus also similar to the inquisitorial civil law system.

Once a person has been found guilty before the Court, they can serve a maximum of thirty years, or, otherwise, a life sentence. The length of the accused’s sentence must be reviewed after 25 years in the case of a lifelong imprisonment, or after two-thirds of the sentence has been served in all other cases. Prisoners are sent to countries which have volunteered to carry the costs of housing criminals, where they are placed in national prisons (if there are no volunteers, individuals are simply placed in a Dutch prison). This is because the ICC does not have its own territory and thus no prisons in which to place those found guilty of crimes before it.

Chapter 14. Terrorism

Terrorism existed long before 9/11; thus, even in 1937, the Convention on the Prevention and Punishment of Terrorism was concluded. Terrorism is a crime of international law because victims might be of a different nationality than that of the perpetrators, or because it is committed outside the jurisdiction of the country wishing to prosecute it. Terrorism is yet to be defined under international law, however, and States cannot exercise universal jurisdiction over it as they can over piracy, slavery, war crimes or crimes against humanity.

One must first make the distinction between ‘state terrorism’ and ‘state-sponsored terrorism’. The former concerns acts committed by a State against another State (often against the other State’s nationals), or by a State against its own nationals. State-sponsored terrorism, on the other hand, is the support of terrorist groups or the enabling of terrorist attacks (or even a lack of preventative action) by a State. This often happens by supplying arms or sheltering terrorist groups within its territory, or by providing training or finance to the terrorist group.

Terrorism does not fall under the international law of armed conflict (IHL), as terrorists do not qualify as combatants or as organised resistance movements. This is because of their secretive nature and the manner in which terrorist attacks are often carried out (such as suicide bombing); combatants or organised resistance movements are required to wear distinguishing marks and carry their arms openly.

Very little can be agreed upon with regards to the definition of terrorism under international law. The only consensus exists with regards to terrorism being an action which threatens the use of force (and sometimes carries this threat out), thus creating a ‘climate of fear’. Thus acts motivated by personal, rather than collective, gain can also be considered acts of terrorism: what matters is not necessarily the intention of the terrorist, but the reaction they incite in their victims. One of the most sensitive points in the definition of terrorism is whether national liberation movements (NLMs) should be considered terrorists or not.

Nonetheless, one can find a broad definition of terrorism in the International Convention for the Suppression of the Financing of Terrorism 1999 (which is legally binding). The Convention defines terrorism in Article 2(1)(b):

• • Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

Universal conventions on terrorism

Thus far a number of universal conventions have been concluded on terrorism, which hold that the crimes within the scope of each apply to all acts of terrorism, regardless of the location of the crime of the motivation or nationality of the perpetrators. These conventions are:

• The Convention on offences and certain other acts committed on board aircraft 1963 (Tokyo Convention)

• Convention for the suppression of unlawful seizure of aircraft 1970 (Hijacking convention/Hague convention)

• Convention for the suppression of unlawful acts against the safety of civil aviation 1971 (Montreal convention)

• Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents 1973 (Diplomatic convention)

• International convention against the taking of hostages 1979 (Hostages convention)

• Convention on the physical protection of nuclear material 1980 (Nuclear Convention)

• Protocol for the suppression of unlawful acts against the safety of maritime navigation 1988 (Rome Convention/SUA Convention)

• • Protocol for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf 1988 (Rome Protocol)

  • Protocol to the Protocol for the suppression of unlawful acts against the Safety of fixed platforms located on the continental shelf 2005 (Second Rome protocol/Fixed platform Protocol)

• Convention on the marking of plastic explosives for the purpose of detection 1991 (Plastic explosives convention)

• International convention for the suppression of the financing of terrorism 1999 (Financing convention)

• International convention for the suppression of acts of nuclear terrorism 2005 (Nuclear terrorism convention)

Efforts are currently also underway, lead by India, for the creation of a Comprehensive Convention on International Terrorism. This convention will consolidate all the previous conventions listed above, as well as add additional rules where necessary to fill gaps.

It is not clear to what extent the above-mentioned conventions have truly helped to deter terrorism. Although acts such as plane hijacking and aircraft sabotage have decreased over the past few years, very few prosecutions have been brought against suspected terrorists thus far, despite the legal permission granted to States to do so.

The main provisions of the universal terrorism conventions

The conventions mentioned above all share a number of elements. Firstly, they generally only apply to acts of international terrorism, not to internal forms of terrorism. The offence in question must thus generally be committed in multiple States; the perpetrators and victims must not be of the same State that has been the victim of the crime; and multiple States must have jurisdiction over the offences in question. It is up to the victim State to implement the terms of the conventions through their domestic legislations. States have the duty to design according penalties for the crime of terrorism that take into account its ‘grave nature’.

A central element of the conventions is also the doctrine of quasi-universal jurisdiction, in combination with the ‘extradite-or-prosecute’ rule. Each of the conventions seeks to establish universal jurisdiction – this can however not be achieved unless all States becomes parties. The result of this is the establishment of quasi-universal jurisdiction. Thus each State is allowed to arrest those who are found within their territory and of whom it is suspected that they have committed terrorist acts. States also have the discretion to exercise their jurisdiction over terrorist acts committed against their nationals (or the State) in foreign territories.

States which have a suspected terrorist within their territory are obliged to either extradite or prosecute them (that is to say, initiate investigations potentially leading to prosecution, depending on whether there is enough evidence to do so). This is known as the principle of aut dedere aut judicare, and is present in all the Conventions mentioned above. This principle ensures that terrorists cannot use the territories of any of the States Parties to hide from prosecution. The conventions recognise acts of terrorism as extraditable, given the investigative advantage of holding a trial in the State where the acts were committed and in which the victims are located – and thus where most of the evidence is.

Some of the earlier treaties on terrorism also include what is known as the ‘political exception’ (which dates back to the nineteenth century). This exception bars extradition in cases where the crime in question has been committed on political motives. Some of the treaties also exclude prosecution of terrorist acts during armed conflicts, instead substituting prosecution on grounds of terrorism for that on grounds of war crimes.

The scope of most of the conventions seems to be limited to natural legal persons, although the Financing Convention 1999 also provides for the criminal liability of corporations. Furthermore, terrorists are not to be granted refugee status, in accordance with the Refugees Convention 1951. Article 1(F)(c) states the following (emphasis added)

• • The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

  • (a)  he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

  • (b)  he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

  • (c)  he has been guilty of acts contrary to the purposes and principles of the United Nations.

The UNGA passed a resolution in 1996 to the effect that the terrorism is indeed contrary to the purposes and principles of the United Nations.

The role of the Security Council

The UNSC plays an important role in condemning terrorism. It has passed several resolutions to this effect:

• Numerous resolutions on the Lockerbie sabotage in 1988

• Resolutions concerning the extradition of suspected terrorists from the territory of Sudan to Ethiopia, following the attempted assassination of the Egyptian President to Ethiopia

• Resolution 1368 (2001) following the attacks on September 11, 2001 on the Twin Towers

• Resolutions concerning the Taliban, Al-Qaida and Usama bin Laden, going back as far as 1999

Chapter 15. The law of the sea

The law of the sea is one of the oldest and fundamental subject of international law. The first codification of these (customary) laws took place in the UN Conventions on the Law of the Sea 1958 (of which there were four). One of the most important contemporary instruments governing the law of the sea is the UN Convention on the Law of the Sea 1982, also known as UNCLOS. For many of the parties to the 1958 treaty, UNCLOS has now replaced the latter. Any references to articles in this chapter, unless otherwise mentioned, are to articles in UNCLOS.

Internal waters

Article 8 of UNCLOS defines internal waters as follows:

• • 1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

  • 2. Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.

A number of bodies of water can thus be counted as internal waters, such as:

• Bays

• Estuaries

• Ports

• Rivers

• Canals

• Lakes

The internal waters of a State are part of its sovereign territory: foreign ships do not enjoy the so-called ‘right of innocent passage’ through these waters unless this is expressly granted. Because internal waters are under the sovereignty of a State, it is thus free to refuse a ship entry.

Furthermore, foreign vessels will fall under the jurisdiction of the State of which they are in the territorial waters. This means that it can be barred from leaving in certain circumstances, as well as that it is subject to the laws of the State in which it is located.

Baselines

Articles 3-16 of UNCLOS describe the use of ‘baselines’ to measure the breadth of things such as a State’s territorial sea (see below), its contiguous or exclusive economic zones, or its continental shelf.

The ‘normal baseline’ is defined in Article 5 of UNCLOS:

• •  

  • Except where otherwise provided in this Convention, 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.

Normal baselines are often inevitably curved. Sometimes it is thus necessary to create a straight baselines if the curvature is too extreme, as defined in Article 7:

• • 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

  • 2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.

  • 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.

  • 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.

  • 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

  • 6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.

‘Historic’ or ‘vital’ bays are not governed by UNCLOS; the latter is not included in customary international law either.

Territorial seas

Article 2(1) defines the territorial sea of a State that which is part of its sovereign territory, an ‘adjacent belt of sea’, ‘beyond its land territory and internal waters’. Sovereignty over a State’s territorial sea does not need to be established, as it flows naturally from the establishment of its sovereignty over its land territories. Article 3 determines the breadth of the territorial sea in line with UNCLOS:

• •  

  • Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Islands can also have territorial seas, contiguous zones, EEZs and continental shelves. Article 121 discusses the role of islands within UNCLOS, including the definition of the term:

• • 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

  • 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

  • 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

Article 17 states that “ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea”. According to Article 19(1), “[p]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law”. The term passage itself is defined in Article 18 of the Convention:

• • 1. Passage means navigation through the territorial sea for the purpose of:

    • (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

    • (b) proceeding to or from internal waters or a call at such roadstead or port facility.

  • 2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

The right to innocent passage may be invoked if it is thus prejudicial to ‘peace, good order or security’ or if the invocation of this right is necessary for the protection of State security, as stated in Article 25(3).

Nevertheless, a State is allowed to protect its legitimate interests, and thus the Convention allows it to produce legislation relating to the right of innocent passage, as is stated in Article 21:

• • 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

    • (a) the safety of navigation and the regulation of maritime traffic;

    • (b) the protection of navigational aids and facilities and other facilities or installations;

    • (c) the protection of cables and pipelines;

    • (d) the conservation of the living resources of the sea;

    • (e) the prevention of infringement of the fisheries laws and regulations of the coastal State;

    • (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;

    • (g) marine scientific research and hydrographic surveys;

    • (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

  • 2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.

  • 3. The coastal State shall give due publicity to all such laws and regulations.

  • 4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.

  •  

The State simultaneously has a number of duties in relation to the right of innocent passage, as stated in Article 24:

• • 1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not:

    • (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or

    • (b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State.

  • 2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.

  •  

Article 27(1) and (2) provide for the limitations of the coastal State on the exercise of its criminal jurisdiction upon foreign vessels:

• • 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

    • (a) if the consequences of the crime extend to the coastal State;

    • (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

    • (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or

    • (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

  • 2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.

  •  

Similar provisions are made with regard to a State’s civil jurisdiction in Article 28.

Contiguous zones and exclusive economic zones

The term ‘contiguous zone’ is defined in Article 33:

• •  

  • 1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

    • (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

    • (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

  • 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

The term is however not very well known, nor have many States establishes contiguous zones (only about 1/3^rd of coastal States).

The term ‘exclusive economic zone’ (EEZ) is more well-known; Articles 55 to 75 in the Convention discuss EEZs. EEZs occupy areas which were once part of the high seas; they must be claimed by a coastal (that is to say, they are not part of the inherent package of rights of a coastal State). EEZs extend up to “200 nautical miles from the baselines from which the breadth of the territorial sea is measured, according to Article 57. The EEZ is defined in Article 55:

• •  

  • The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.

EEZs are particularly important for developing countries, as most natural resources are within 200 nautical miles of the coast. Thus the establishment of an EEZ will allow a coastal State to exploit these natural resources.

Article 56(1) lays out the rights, jurisdiction and duties of a coastal State within its EEZ, stating that:

• • In the exclusive economic zone, the coastal State has:

    • (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

    • (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

      • (i) the establishment and use of artificial islands, installations and structures;

      • (ii) marine scientific research;

      • (iii) the protection and preservation of the marine environment;

      • (c) other rights and duties provided for in this Convention.

      •  

Nevertheless, because of the special nature of the EEZ, other States also retain certain rights in regard to it, such as the freedom of ships to navigate through it, and the freedom of overflight across it by aircraft. States are also allowed to lay submarine cables and pipelines.

International straits and archipelagos

International straits are defined in Article 37 as “straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”. Such straits must thus necessarily be more than 23 nautical miles. UNCLOS does not apply if there is already a high seas or EEZ route through the strait, if the strait lies between an island and the mainland, if the strait connects the high seas or EEZ of one State with a third State, or if there is already a treaty in place governing the strait in question.

Other States have the right of transit passage through international States, as stated in Article 38(1)-(2):

• • 1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.

  • 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

No other activity is allowed within the international strait, unless it is the result of force majeure or distress.

Articles 46-54 provide for the rules of the Convention relating to archipelagos. Article 46 provides some important definitions:

• • (a) "archipelagic State" means a State constituted wholly by one or more archipelagos and may include other islands;

  • (b) "archipelago" means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

An archipelagic State has certain rights over its territory. Firstly, as stated in Article 47(1), it” may “draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1”.

The archipelagic State has sovereignty over its archipelagic Waters, as is stated in Article 49. Nonetheless, foreign States also have more extensive rights than innocent passage through archipelagic waters, their rights extending to archipelagic sea lanes passage. This form of passage is similar to that described above for international straits.

Continental shelves

Continental shelves have become more important in the latter half of the twentieth century in light of gas and oil exploitation in offshore regions. Article 76(1) describes the term:

• • The continental shelf of a coastal State comprises the seabed 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 baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

The continental margin is accordingly defined in Article 76(3); in includes the continental shelf proper, which reaches from the point of low watermark to a depth of 130 metres, on average. It also includes the slope, which follows from the continental shelf and descends at a steeper rate. The slope is followed by the rise, which is also included within the continental margin. The rise is the point at which the seabed starts to fall away and the depth of the water extends to approximately 3500-5500 metres. UNCLOS provides very technical details in Articles77(4)-(7) about how to calculate the edge of the continental margin.

A coastal State has inherent sovereign rights over its continental shelf. These allow it to explore the continental shelf and exploit its natural resources, if it so pleases. Article 77(4) defines the scope of natural resources:

• • The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

A coastal State is also allowed to construct artificial islands or other installations in its continental shelf (or in its EEZ), over which it exercises exclusive jurisdiction.

Some continental shelves may possibly extend beyond 200 nautical miles. If a State wishes to exercise its rights over such a continental shelf, it is required to submits its request to the Commission on the Limits of the Continental Shelf (CLCS).

The deep seabed and the high seas

The deep seabed is effectively known under UNCLOS as the ‘Area’. According to Article 136, “The Area and its resources are the common heritage of mankind”. Consequently, the following rules apply, as stated in Article 137:

• • 1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.

  • 2. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority.

  • 3. No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.

The Authority mentioned in the Article is the International Seabed Authority, which is located in Jamaica.

The high seas are defined in Article 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”. The high seas cannot be the subject of any State’s sovereignty, as is stated in Article 89.

There are six freedoms of the high seas defined by the Convention in Article 87(1) (the list is non-exhaustive):

• • (a) freedom of navigation;

  • (b) freedom of overflight;

  • (c) freedom to lay submarine cables and pipelines, subject to Part VI;

  • (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

  • (e) freedom of fishing, subject to the conditions laid down in section 2;

  • (f) freedom of scientific research, subject to Parts VI and XIII.

The freedom of navigation is the right of a State “to sail ships flying its flag on the high seas” (Article 89). It is a very important principle within international law and the law of the sea. If a ship is flying the flag of a State, it means that that State has exclusive jurisdiction over the vessel. The freedom of overflight allows civil and military aircraft to fly freely in the airspace above the high seas and the EEZs of States, as long as relevant rules of international law allows such actions. Freedom (c), like the other freedoms in the list, must be exercised with regard to the rights and interests of other States. Freedom (f) is also subject to certain limitations, namely those concerning the Area. The freedom of fishing is the body of a substantial amount of international law, and is subject to a number of constraints also (see below).

Piracy is also included within the Convention’s rules on the high seas. It is defined in Article 101 as follows:

• • (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

  • (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

  • (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

  • (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

  • (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Vessels which are suspected to be under the sail of pirates can be boarded by the warship of any State, which is known as the right of visit. If it becomes apparent that the crew are indeed pirates, they may be arrested and tried in the national courts of the seizing State; their ship may also be seized. Piracy still occurs today, and is in fact increasing. One of the most threatened areas is Somalia; the UNSC has adopted a number of resolutions seeking to address the issues created by piracy in the waters surrounding Somalia.

Similar provisions exist for those suspected of participating in the slave trade, although slave traders may not be tried in the courts of the seizing State but rather in the flag State of the slave ship. They do not exist for drug trafficking, as of 2013. Nonetheless, over 100 States have also agreed to impede and stop the trafficking of WMDs at sea trhough the establishment of the Proliferation Security Initiative (PSI), which was concluded in 2003.

It is also not allowed to broadcast on the high seas without obtaining authorisation. Unauthorised broadcasting is defined in Article 109:

• • 1. All States shall cooperate in the suppression of unauthorized broadcasting from the high seas.

  • 2. For the purposes of this Convention, "unauthorized broadcasting" means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls.

  • 3. Any person engaged in unauthorized broadcasting may be prosecuted before the court of:

  • (a) the flag State of the ship;

  • (b) the State of registry of the installation;

  • (c) the State of which the person is a national;

  • (d) any State where the transmissions can be received; or

  • (e) any State where authorized radio communication is suffering interference.

  • 4. On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus.

The right of visit is also allowed on ships suspected of unauthorised broadcasting. A similar topic is that of the right of hot pursuit, which can be construed as an exception to the freedom of navigation (although it is best conceived as an extension of the rights of coastal States). It is the right of military aircraft or vessels. The right of hot pursuit is explored in Article 111:

• • 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.

  • 2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones.

  • 3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.

Delimitation

Delimitation is necessary when the territorial claims of two or more States to their territorial seas, EEZs or continental shelves overlap. It is a frequent source of dispute, and is usually resolved through negotiation or reference to international (arbitral) tribunals or courts. The subject is incredibly complex and thus cannot be completely explained here.

Delimitation in the case of a territorial sea usually proceeds by drawing an equidistant median line between the shores of each State, if the States are opposite to each other. If such a situation occurs and States are adjacent to each other, then the land boundary is generally extended until it reaches the sea. Similar solutions are provided by the Convention for delimitation of continental shelves and EEZs in Articles 74 and 83.

Nonetheless, such disputes are often tailored to the specific situation, there not being one correct legal answer; disputes are usually resolved in accordance with the principle of equity. Thus one might need to reconsider the location of a delimitation if there are certain circumstances which make the line drawn by the delimitation inequitable

Ships

A State can only exercise its jurisdiction over ships flying its own flag. These ships have its nationality, although Article 91 states that “there must exist a genuine link between the State and the ship”. If a ship sails with more than one flag, it does not have a nationality; such a ship can be boarded by the warship of any State. A ship may also be boarded if it is suspected that it has the same nationality as the warship wishing to board it.

A warship (in peacetime) is defined by Article 29:

• • For the purposes of this Convention, "warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

In accordance with Article 95, a warship has complete immunity from the jurisdiction of foreign States on the high seas and in foreign EEZs; it is part of the territory of the State of which it is flying the flag. This right continues once it has lawfully entered the port of a foreign State. Similar rights exist for foreign governmental ships operated for non-commercial purposes. There is no consensus as to whether warships are allowed the right of innocent passage through the territorial waters of a foreign State.

Landlocked States

The same rights exist for landlocked States as for coastal States with regards to freedom of navigation on the high seas, as well as other rights accorded in relation to territorial waters, contiguous zones and EEZs. Of the six freedoms described in Article 87, landlocked Stated are not allowed to construct artificial islands or other offshore installations.

Fishing

There are different rules on the conduct of fishing in internal waters and the territorial sea than there are in relation to fishing in EEZs or the high seas. A State can reserve the exclusive authority to fish in its internal waters and its territorial seas; this authority is very rarely extended to other States.

It is the duty of the State to conserve the fish stocks in its EEZ; it may thus determine how many fish of each species may be caught in the EEZ per season or per year. This is known as the total allowable catch or TAC. If these guidelines are violated, a ship suspected of violating them may be boarded by the State in question; the crew may be arrested and subsequently prosecuted (although force may only be used where appropriate and in proportionate means).

UNCLOS does not provide much in the way of regulation of fishing on the high seas, merely stating in Article 116:

• • All States have the right for their nationals to engage in fishing on the high seas subject to:

  • (a) their treaty obligations;

  • (b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and

  • (c) the provisions of this section.

It is also important to note that fish do not necessarily respect the territorial boundaries of States. Thus anadromous and catadronous species migrate to and from fresh water to the sea; marine mammals also cross territorial boundaries. One of the most well-known species of migratory fish is the tuna, which is provided for in Article 61 of UNCLOS, as well as the Convention and the Straddling and Highly Migratory Fish Stocks Agreement 1995 (also known as the Fish Stocks Agreement).

One can distinguish between shared stocks and straddling stocks of species. Shared stocks migrate between two EEZs; straddling stocks migrate between EEZs and the high seas. States that have such stocks are obliged to come together and ensure that adequate provisions are made for the conservation and development of the stock in that particular region.

Sedentary species (part of the natural resources of the continental shelf, see above) do not need to be conserved, nor is a State obliged to allow other States to harvest them. Marine mammals, such as whales, on the other hand, can be the subject of specific provisions forbidding their exploitation.

Wrecks

States do not have control over any wrecks located outside their territorial sea, although specific treaties or agreements have been made concerning the protection of wrecks in such areas as underwater cultural heritage. UNESCO has also concluded a treaty on such forms of heritage in general, the 2001 Convention on the Protection of the Underwater Cultural Heritage (even though some coastal States expressed reservations).

Dispute settlement

The International Tribunal for the Law of the Sea (ITLOS) was created in 1996 following the entry into force of UNCLOS. Its procedure is similar to that of the ICJ. ITLOS has jurisdiction over all disputes concerning the interpretation or application of UNCLOS. The means of dispute settlement are described extensively in Article 279-299.

Chapter 16. International environmental law

International environmental law emerged in the 1970s as a separate area of international law. It usually requires compromise between commercial or economic interests and those choices which are in the best interests of the environment.

Most principles of international environmental law, such as the ‘polluter pays’ principle and ‘sustainable development’ are known as soft law. International environmental law is not necessarily a sub-field of international law in and of itself; it is not comprised of a single comprehensive treaty, but rather of multiple treaties (there are currently over 200 international environmental treaties). One aspect that characterises IEL is the use of framework treaties – treaties which are later elaborated upon in a number of ways. As a body of law, international organisations such as the UN have played an important role in formulating and implementing environmental treaties. Notably, there is no single definition of the ‘environment’ under IEL, given its rapid and recent development. The definition is usually treaty-specific.

The history of international environmental law

IEL started to develop as early as the 1930s, with the 1938 Trail Smelter arbitral award, although the field proper began in 1972 with the adoption of the Stockholm Declaration of Principles by the UN Conference on the Human Environment (INCHE). The Stockholm Declaration was not a treaty; it paved the way for the negotiation of treaties at later stages in the 1970s. In 1972 the UN General Assembly established the UN Environment Programme (UNEP), which is tasked with adopting IEL treaties and developing the field. The 1987 ‘Brundlandt report’ brought forward the concept of ‘sustainable development’ to the fore of IEL. Another important landmark within the history of IEL was the creation of the Rio Declaration on Environment and Development 1992 by the UN Conference on Environment and Development (UNCED).

Central concepts of IEL

There are a number of concepts of great importance within IEL:

• The precautionary approach

• The polluter pays principle

• Sustainable development

• Environmental impact assessment (EIA)

The precautionary principle is defined in Principle 15 of the Rio Declaration:

• • In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The precautionary principle is not part of customary international law. It leaves a lot of essential aspects of its definition undefined. It has nevertheless been used in the formulation of a number of treaties, such as the Vienna Convention for the Protection of the Ozone Layer 1985 and the Montreal Convention 1987, the Fish Stocks Agreement 1995 and the Cartagena Protocol.

The polluter pays principle is also not part of customary international law; the relevant principle in the Rio Declaration – Principle 16 – is very weak in its wording:

• • National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

Internalisation is the incorporation of (social) costs into the internal economic structure of a product. The polluter pays principle is also unclear – who determines who the polluter is? It is because of these uncertainties that the costs of pollution are often determined in advance, to avoid disputes.

Sustainable development is similarly vaguely worded; it is really only relevant to make a statement as to what it entails except when one is looking at case-specific interpretations of the principle. Sustainable development generally entails that industry should use or exploit natural resources in such a manner that they can regenerate and be reused by future generations. One of the most well-explored regions relating to the principle of sustainable development is that of overfishing.

Environmental impact assessment (EIA) is defined in Principle 17 of the Rio Declaration:

• • Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

EIAs are undertaken to determine early on whether an activity could have negative effects on the environment. It is not a universal obligation under international law, but is provided for in a number of treaties, such as the Antarctic Treaty on Environmental Protection 1991.

The protection of biological diversity

In 1946 the International Convention for the Regulation of Whaling (IWC) was adopted. Its purpose is to conserve the whale stock in order to allow the whaling industry to develop in a sustainable manner. It currently has 85 parties. It allows whaling for the purposes of scientific research; in 1986, it enacted a moratorium on commercial whaling (although parties are free to opt out of the moratorium), which split the IWC Commission into those in favour and those against it (a trend which continues to this day).

There are a number of regimes relating to other types of fishing, such as the Northwest Atlantic Fisheries Organisation (NAFO), the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR), and the South East Atlantic Fisheries Organisation. Each of the regimes is tasked with the conservation of fish stocks through the adoption of legally binding measures. Unfortunately, these measures are very rarely enforced by the States parties, nor are they binding on non-member States. The two most effective regional fisheries commissions to date are the Commissions for the Conservation of Southern Bluefin Tuna (CCSBT) and the Indian Ocean Tuna (IOTC).

There are also several treaties relating to the protection of nature, either for pragmatic or aesthetic reasons, such as the Ramsar Convention on Wetlands of International Importance 1971 and the Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES).

The UN Convention on Biological Diversity 1992 is specifically tasked with the protection of biological diversity. It defines ‘biodiversity’ in Article 2 as:

• • [T]he variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.

Accordingly, ecosystem is also defined in Article 2 as “a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit”. The Convention had 191 parties in 2009. The reason for this is most likely because most States will not want to be seen as against biodiversity and because the Convention did not call for any specific legislation on behalf of States. One of the results of the Convention was the Cartagena Protocol on Biosafety 2000, which entered into force in 2003, which provides rules guarding the use of genetically modified organisms and their potential impact on biological diversity.

More specific protections, namely for the protection of the marine environment, are provided in UNCLOS and the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL). A number of other treaties are also of relevance in this issue:

• The International Convention on Civil Liability for Oil Pollution Damage 1969 (and the 1992 Convention which replaced it)

• The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (and its 1992 replacement)

• The Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter 1972 and its 1996 Protocol

• The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989

The ozone, climate change and the Kyoto protocol

The early 1980s brought about growing awareness about the damage to the ozone layer, resulting in the Vienna Convention for the Protection of the Ozone Layer 1985 and the Montreal Protocol on Substances that Deplete the Ozone Layer 1987. The Montreal Protocol is of a practically universal status, and requires parties to reduce their production and consumption of ozone-depleting substances, with an eye towards eventual elimination thereof.

Another important convention relating to the environment is the UN Framework Convention on Climate Change 1992, which discusses global warming as the result of greenhouse gases (e.g. carbon dioxide) from the use of fossil fuels. Article 2 outlines the objective of the Convention:

• • The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Thus far the only measure that has resulted from the Convention is the Kyoto Protocol, which expired in 2012.

Nuclear material

Another important body within IEL is the International Atomic Energy Agency (IAEA), which is closely tied to the UN. A number of important treaties have been concluded on the issue, such as the OECD Convention on Third Party Liability in the Field of Nuclear Energy 1960 (also known as the Paris Convention), the complementary 1960 Brussels Agreement, the Vienna Convention on Civil Liability for Nuclear Damage 1963 and the Convention on Early Notification of a Nuclear Accident 1986.

Liability and enforcement

The majority of IEL treaties do not include provisions on specific liability, relying on the principle of state responsibility within customary international law instead. Some treaties have however expressly defined liabilities that flow from certain situations; there is little consensus beyond treaty-specific situations as to what principles of liability are contained within IEL. Most treaties which have sought to establish regimes of liability beyond the protection of the marine environment have failed to reach enough ratifications to enter into force or do not have enough parties to make them successful.

The enforcement mechanisms of IEL can be found in specific IEL treaties, as well as human rights treaties in particular situations.

Chapter 17. International civil aviation

The essential treaty governing international civil aviation is the Chicago Convention on International Civil Aviation 1944, which created the International Civil Aviation Organisation (ICAO), a UN specialised agency. Annex 7 of the Convention defines aircraft as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface”. It does thus not cover rockets, missiles, satellites or hovercraft. The Convention furthermore only covers civil aircraft. Each aircraft has the nationality of the State where it is currently registered; it is not possible for an aircraft to be registered in more than one State.

As a State has sovereignty over its airspace, Article 6 states that “[n]o scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization”. Furthermore, a State is granted the right of ‘cabotage’, which is the right to operate air services within its territory, i.e. domestic air services. International air services are divided into scheduled and non-scheduled services. Their nature is fairly self-evident from their name; non-scheduled services thus include charter flights, whilst scheduled services are commercial.

All States are allowed to fly their aircraft over airspace not above the territory of another State, although a State may be responsible for a certain region of airspace for reasons of safety as international airspace is divided into flight information regions (FIRs). In some situations States will cordon off certain areas of international airspace near their territorial airspace for reasons of safety also; thus there might be, for example, a military drill going on in the area. These exceptions are usually accepted by other States, provided their are not too prolonged or reach too far into international airspace.

Airlines are generally given the right to take on board passengers or cargo in another State than the State in which they are registered; this occurs through air services agreements (ASAs). ASAs allow such airlines to operate scheduled services between the territory of two States. ASAs are negotiated by the governments of States, not the commercial owners of the airlines (although airline representatives do take part in negotiations) and are usually accompanied by MOUs. An ASA generally contains a number of things:

• ‘IASTA Rights’, also known as First and Second Freedoms, the right of aircraft to fly across the territory of each of the States, as well as to land if necessary for non-traffic purposes (eg refueling)

• Third and Fourth Freedoms, allowing airlines to pick up and drop off traffic between the two States which have concluded the ASA

• The Fifth Freedom, which allows airlines to pick up and drop off traffic on a route of three or more States

• Provisions allowing for ‘fair and equal’ competition between the various airlines

• The types of aircraft which can be operated between the two States

• Custom exemptions

• Mechanisms discussing the approval of airline fares

• The right to send back the earnings of the airlines to their home States

• Procedures for arbitration

• The right to settle airline staff in either of the States, as well as to establish offices for sales

The Warsaw and Rome Conventions

The Warsaw Convention for the Unification of Certain Rules relating to Carriage by Air 1929 creates a uniform regime of liability with regards to aircraft and air travel. It has been amended numerous times in the past century, the latest point being in 1975; these various amendments created a regime which was anything but universal and uniform. Consequently, the Montreal Convention for the Unification of Certain Rules for International Carriage by Air 1999 was created to replace the Warsaw Convention. Also of relevance is the Rome Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface 1952; it states that foreign operators have full liability for any damaged incurred on the ground.

Jurisdiction over civil aircraft

Who gets to exercise jurisdiction over criminal offences on board an aircraft flying through foreign airspace? The Tokyo Convention on Offences and Certain other Acts Committed on Board Aircraft 1963 states that this is the responsibility of the State in which the aircraft is registered (this right is absolute when the aircraft is still in flight), although other States with an interest in the issue (i.e. nationalities of those involved or the final destination of the aircraft).

The use of force against aircraft

The Chicago Convention prohibits the use of force against flying civilian aircraft, unless a State has genuine reason to believe that the use of force against an aircraft would be necessary for reasons of self-defence. Article 3bis of the Chicago Convention states that a State has the right to force an aircraft to land if it has passed through its territory without first gaining the proper permissions. Because such an interception must not endanger the lives of the crew and passengers, as well as the integrity of the aircraft, it is likely that any interception would need to be voluntary in order to adhere to the Chicago Convention.

Chapter 18. Special regimes

Certain areas of the Earth have special regimes under international law, such as Antarctica, the Arctic, canals and international rivers, and outer space.

Antarctica

Antarctica has a special status under international law, partly because several States claim that they have sovereignty over it (namely Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom); each claim different sectors of Antarctica. No sovereignty is officially recognised under international law.

Antarctica is covered by the Antarctic Treaty 1959, which can be amended if necessary (although this rarely happens, given that the process is quite cumbersome). It is governed by the Antarctic Treaty System (ATS), which consists of:

• The Antarctic Treaty 1959

• The 1991 Environmental Protocol to the Treaty

• The Convention on the Conservation of of Antarctic Seals 1972

• The Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR)

The Antarctic Treaty recognises a number of things in relation to Antarctica. Firstly, in Article 1, it states that “Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons”. Furthermore, Article 2 states that “[f]reedom of scientific investigation in Antarctica and cooperation toward that end … shall continue”. This exercise of this freedom is elaborated upon in Article 3(1):

• • In order to promote international cooperation in scientific investigation in Antarctica, as provided for in Article II of the present Treaty, the Contracting Parties agree that, to the greatest extent feasible and practicable:

    • (a)  information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy and efficiency of operations;

    • (b)  scientific personnel shall be exchanged in Antarctica between expeditions and stations;

    • (c)  scientific observations and results from Antarctica shall be exchanged and made freely available.

The Antarctic Treaty does not force its parties to change their legal positions, given that these positions differ quite starkly. The positions of the parties are preserved by Article IV of the Treaty, which has also been used in situations outside of Antarctica:

• • 1. Nothing contained in the present Treaty shall be interpreted as:

    • (a)  a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

    • (b)  a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

    • (c)  prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica.

  • 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.

The implementation and development of the Treaty is furthered by the Antarctic Treaty Consultative Parties (ATCPs). The ATCPs meet manually at the Antarctic Treaty Consultative Meeting (ATCM), with a permanent secretariat for the ATCM in Buenos Aires. In 1991, the ATCPS adopted the Protocol on Environmental Protection to the Antarctic Treaty. It is now necessary for new parties to the Treaty to first become parties to the Protocol, which seeks to comprehensively protect the environment of the region. The Protocol has a number of key provisions:

• The prohibition on the mining for minerals

• The necessity of creating environmental impact assessments (EIAs) for any activity in the region which might have an impact upon the environment

• Provisions regarding the complicated process surrounding the settlement of disputes

The CCAMLR is a fishery agreement. Its objective is defined in Article 2:

• • 1.         The objective of this Convention is the conservation of Antarctic marine living resources.

  • 2.         For the purposes of this Convention, the term ‘conservation’ includes rational use.

  • 3.         Any harvesting and associated activities in the area to which this Convention applies shall be conducted in accordance with the provisions of this Convention and with the following principles of conservation:

    • (a)     prevention of decrease in the size of any harvested population to levels below those which ensure its stable recruitment.  For this purpose its size should not be allowed to fall below a level close to that which ensures the greatest net annual increment;

    • (b)     maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources and the restoration of depleted populations to the levels defined in sub-paragraph (a) above; and

    • (c)     prevention of changes or minimisation of the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades, taking into account the state of available knowledge of the direct and indirect impact of harvesting, the effect of the introduction of alien species, the effects of associated activities on the marine ecosystem and of the effects of environmental changes, with the aim of making possible the sustained conservation of Antarctic marine living resources.

The CCAMLR currently has thirty-four parties; its secretariat is in Hobart, Tasmania. The CCAMLR is also tasked with prevent the problems of illegal, unregulated and unreported fishing (IUU) in the Antarctic.

The Arctic

The scope of the Arctic region is less well defined than that of Antarctica; it is furthermore not a continent – in contrast to Antarctica, it does have a population though. Nonetheless, one can state that the Arctic covers everything above the latitude of 60° 33’ North. Several States claim part of the Arctic, such as Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States, but, once again, these territorial claims do not hold up under international law, given that they are over chunks of ice on the high seas. The only legal territorial claim is that of Norway over Svalbard (previously known as Spitsbergen) pursuant to the Treaty of Spitsbergen 1920.

Who controls which parts of the Arctic will likely become more and more important as time goes by, as it is likely that there is a wealth of natural resources below the ice such as oil and gas. Issues surrounding the Arctic are discussed by the Arctic Council, which came into being with the Ottawa Declaration of 1996. The Council has yet to produce any treaties.

Canals and international rivers

In certain situations canals within the territory of a State can connect two parts of the high seas. Such canals have been subject to several special legal regimes. One of these regimes related to the Suez Canal, which is provided for in the Convention of Constantinople 1888. The Convention states that the Canal must always be open to the vessels of any State, regardless of whether Egypt (in which the territory of the canal lies) is at peace or at war with it. This right has generally been respected since the conclusion of the Convention.

Another canal of importance is the Panama Canal, which was the subject of a 1903 treaty and the Panama Canal Treaties 1977. The Canal connects the Atlantic and Pacific Oceans. Similar to the Suez Canal, the canal is neutralised and vessels travelling through it have the right to freedom of navigation. The Kiel Canal connects the Baltic Sea and the North Sea, running through Germany. It too used to be neutralised (by virtue of the Versailles Treaty of Peace in 1919), although this is no longer the case, Germany having denounced the provision in 1936.

The freedom of navigation through international rivers is not yet customary international law, although several treaties relating to the freedom of navigation through specific rivers have been concluded:

• The Rhine, through the Mannheim Convention. The Rhine is managed by the Central Commission for Navigation on the Rhine (CCNR)

• The Danube, through the Belgrade Convention 1948 and the Danube River Protection Convention 1994 (DRPC), administered by the International Commission for the Protection of the Danube River (ICPDR)

Where most early treaties governing the use of international rivers used to relate primarily to navigation, a recent trend has been the rise of agreements and treaties governing non-navigational uses of international watercourses, such as the results of pollution and the building of dams. One of these is the Convention on the Law of the Non-Navigational Uses of International Watercourses 1997, a framework treaty allowing States to discuss the most suitable regime for a watercourse running through their territories. The Convention is yet to enter into force.

Outer space

The most logical definition of outer space is the space beyond where airspace ends. One of the treaties on outer space is the Treaty on Principles Governing the Activities of State in the Exploration and Use of Outer Space 1967 (also known as the Outer Space Treaty). It was originally an agreement between the US and the Soviet Union. The treaty is based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which contain the following principles:

• •     1.    The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind.

  •     2.    Outer space and celestial bodies are free for exploration and use by all States on a basis of equality and in accordance with international law.

  •     3.    Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

  •     4.    The activities of States in the exploration and use of outer space shall be carried on 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.

  • 5.    States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried on in conformity with the principles set forth in the present Declaration. The activities of non-governmental entities in outer space shall require authorization and continuing supervision by the State concerned. When activities are carried on in outer space by an international organization, responsibility for compliance with the principles set forth in this Declaration shall be borne by the international organization and by the States participating in it.

  •     6.    In the exploration and use of outer space, States shall be guided by the principle of co- operation and mutual assistance and shall conduct all their activities in outer space with due regard for the corresponding interests of other States. If a State has reason to believe that an outer space activity or experiment planned by it or its nationals would cause potentially harmful interference with activities of other States in the peaceful exploration and use of outer space, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State which has reason to believe that an outer space activity or experiment planned by another State would cause potentially harmful interference with activities in the peaceful exploration and use of outer space may request consultation concerning the activity or experiment.

  •     7.    The State on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereon, while in outer space. Ownership of objects launched into outer space, and of their component parts, is not affected by their passage through outer space or by their return to the earth. Such objects or component parts found beyond the limits of the State of registry shall be returned to that State, which shall furnish identifying data upon request prior to return.

  •     8.    Each State which launches or procures the launching of an object into outer space, and each State from whose territory or facility an object is launched, is internationally liable for damage to a foreign State or to its natural or juridical persons by such object or its component parts on the earth, in air space, or in outer space.

  •     9.    States 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 a foreign State or on the high seas. Astronauts who make such a landing shall be safely and promptly returned to the State of registry of their space vehicle.

Another treaty of relevance is the highly controversial Moon Treaty 1979; none of the States with significant roles in space exploration are parties to it. The Treaty states the following with regards to its objective (Article 11, emphasis added):

• • 1. The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.

  • 2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

  • 3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.

  • 4. States Parties have the right to exploration and use of the moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement.

  • 5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

  • 6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the moon.

  • 7. The main purposes of the international regime to be established shall include:

    • (a) The orderly and safe development of the natural resources of the moon;

    • (b) The rational management of those resources;

    • (c) The expansion of opportunities in the use of those resources;

    • (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

  • 8. All the activities with respect to the natural resources of the moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement.

With regards to Article 11(2), it is interesting to observe that some equatorial States have sought to claim the equatorial geostationary orbit as part of their territorial sovereignty. This geostationary orbit is the most optimal location for satellites to transmit their signals worldwide, and is thus a coveted natural resource. The claims of these equatorial States have however been unsuccessful.

There are a number of international space organisations which are also important to note:

• INTELSAT (International Telecommunications Satellite Organisation), which provides non-discriminatory access to global satellite communications

• IMMARSAT (International Maritime Satellite Organisation), which is tasked with providing satellite communications for shipping

• The European Space Agency, a regional body tasked with overseeing the launch of satellite and other space activities, such as science in space

• The International Telecommunications Union (ITU), which is focused on the improvement of international cooperation for the furtherance of global telecommunications

Chapter 19. International economic law

The term ‘international economic law’ usually refers to treaties on the topic that have been concluded following the Second World War, primarily multilateral treaties and bilateral investment treaties (BITs). BITs were of particular importance following the process of decolonisation, as newly independent countries desperately needed foreign investment. There are currently 3,000 BITs. BITs ensure the promotion of foreign investment by virtue of protecting it and creating a stable investment climate. There are several advantages which are provided by BITs for foreign investors (the below being a non-exhaustive list):

• They make it easier to solve disputes by creating a uniform body of customary international law

• BITs allow States to take the other party to the BIT to an international arbitral court instead of a domestic court

• Investor companies will allowed to be governed by the laws of the investor State, and not that of the host State

• They list which activities are protected against injurious measures

• They encourage the free transfer of capital to foreign States

• They regulate the way in which assets may be expropriated and the manner in which this is compensated

• They continue even after the termination of the BIT with respect to investments made before the latter date

A BIT will generally include the following:

• Articles relating to fair and equitable treatment

• National or ‘most-favoured-nation treatment (MFN) in the areas of taxes or profits or other related issues

• Similar treatments relating to losses

• Provisions for the settlement of disputes

• How long the BIT is to last for

BITs are concluded between two States. They protect investments of nationals of the investor State in the host State, whereby ‘investment’ is broadly defined. Investments will either be protected automatically if they meet the definition of ‘investment’, or they must first be run by the host State (of which the former is the more common method). They usually run for ten to fifteen years.

ISCID

In 1966 the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States entered into force. The Washington Convention established the International Centre for the Settlement of Investment Disputes (ISCID), which is an arbitral court tasked with the settlement of investment disputes. ISCID provides the facilities for the voluntary settlement of such disputes.

The Energy Charter Treaty

The Energy Charter Treaty 1994 “establishes a legal framework in order to promote long-term co- operation in the energy field, based on complementarities and mutual benefits, in accordance with the objectives and principles of the Charter” (Article 2). Article 1(6) defines the investments covered by the Treaty:

• • “Investment” refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as “Charter efficiency projects” and so notified to the Secretariat.

The main objective of the Charter is to provide for the settlement of disputes surrounding energy investments, particularly within Europe.

The World Trade Organisation

The WTO was established in 1995 pursuant to the 1994 Marrakesh Agreement. Its purpose is to reduce and eliminate trade barriers by concluding trade agreements. It currently has 153 members, of which perhaps the most important is the United States.

One of the essential aspects of the WTO is its dispute settlement mechanisms. This was established by the Understanding on Settlement of Disputes (DSU), which was annexed to the WTO Agreement. The system is administered by a Dispute Settlement Body (DSB). The DSB seeks to address disputes as they evolve rather than after the fact; this is because its goal is to provide security and predictability within the multilateral trading system. Cases are heard before the Appellate Body. This body is able to make recommendations to the parties to the case, which may or may not be taken on board.

The NAFTA

NAFTA stands for the North American Free Trade Agreement. It was established by an Agreement of the same name in 1992. Its aim is the promotion of free trade, fair competition, and the removal of barriers to trade. Members of the NAFTA which are also parties to the WTO can choose to bring their dispute before either body. Many of the provisions of NAFTA are similar to those found in BITs in that they protect investments and provide for the settlement of investment disputes. The implementation of NAFTA is overseen by its Commission, which is also allowed to interpret the Agreement for domestic courts.

MERCOSUR and international commercial arbitration

MERCOSUR stands for the Mercado Común del Sur, which was created pursuant to the Treaty of Asunción and the Ouro Preto Protocol 1994. It was established in 1991, and has as its purpose the development of a common market in South America. Like NAFTA and the WTO, it provides methods for the settlement of disputes, although it has not been very successful to date and thus might be replaced by another regional body.

Similar mechanisms such as that of the NAFTA, the WTO and MERCOSUR exist for the arbitration of disputes between corporations or between corporations and States. The rules usually used for these settlements are those of the International Chamber of Commerce (ICC) and the UN Commission on International Trade Law (UNCITRAL).

Chapter 20. State succession

Issues of State succession became important in international law particularly following the periods of decolonisation and the end of the Cold War. The rules governing a situation of succession are highly contextual; one cannot truly rely on the two Vienna Conventions on the topic as they are not deemed to be true reflections of customary international law (and do not have many parties as a consequence).

Succession can occur in any of the following ways:

• Through the independence of an overseas territory

• Through secession (e.g. The Soviet Union or Bangladesh)

• Through dissolution of a larger state (e.g. Yugoslavia)

• Through the merger of two States (e.g. North and South Vietnam, North and South Yemen, Tanganyika and Zanzibar)

• Through the absorption of one State by another and its extinction (e.g. the GDR and the FDR)

• Through the recovery of State sovereignty following long-term occupation

• Through the transfer of territory (e.g. Alsace-Lorraine)

• Through the continuity of Statehood of a State which much consisted of many other territories which have now seceded (e.g. India and Pakistan)

It is not easy to define what the status is of customary international law status on the succession of States and whether successor States are bound by the international legal obligations of the former State. This is because the types of situations that can develop are quite diverse. Certain customary rules relating to bilateral and multilateral treaties have however developed over the course of the past few years:

• If a treaty specifically discusses the relations of the predecessor State with third States, the successor State is not automatically a party to it

• Successor States succeed to treaties creating certain legal situations (such as the extent of their territory) by not doing anything

• The treaties concluded by States which are absorbed into new States do not automatically continue their existence; most time they will disappear

• There is no automatic succession to multilateral treaties by a new State; only rarely would a State automatically succeed to a treaty if it is reflective of customary international legal principles touching upon the rights of its inhabitants, such as human rights

State practice

State practice can be examined in the following areas:

• Former colonies and other dependent territories

• Germany

• Russia

• The former Soviet republics

• The Baltic States

• The Former Yugoslav republics

• Czechoslovakia

Two main approaches have been taken in regard of overseas territories and their gaining of independence. One of these stems from the nineteenth-century, and is known as the theory of universal succession. It was predominant within international law until the 1960s. Under the theory of universal succession, a successor State ‘inherits’ the rights that used to govern the territory. The second approach is known as the clean slate doctrine, which developed in the wake of the American war of independence. As the name implies, the clean state doctrine views successor States as not being bound by previous treaties governing their previous form of government, unless these treaties relate to territorial rights.

In the case of Germany, it was decided within the Unification Treaty between the Federal Republic of Germany and the German Democratic Republic that all treaties concluded by the FRG would apply to the whole of Germany once it was to be reunified (known as the moving-boundary principle). Consequently most of the bilateral treaties concluded by the GDR lapsed.

Russia sees itself as the continuation of the Soviet Union; it declared that it would continue to follow the international obligations of the Soviet Union. It also negotiated the status of certain bilateral treaties which applied to parts of the territory of the Soviet Union which did not become part of Russia. Unfortunately, the practice of the former Soviet republics is not entirely consistent and thus of little use in finding a trend within customary international law. The Baltic States, on the other hand, consistently acceded to multilateral treaties to which the Soviet Union was a party, as well as maintained some bilateral treaties with neighbouring States where necessary. Similarly, the former Yugoslav Republics considered themselves bound by the obligations of the Socialist Federal Republic of Yugoslavia (SFRY) either by virtue of State succession or by being the continuation of the SFRY.

Czechoslovakia dissolved in 1992 and split into the Czech Republic and Slovakia, which both regarded themselves as the continuation of Czechoslovakia and thus bound by its international obligations under multilateral treaties, as well as bilateral treaties where appropriate.

Succession to State property, archives and debts

There is one convention on this topic, the Vienna Convention on the Succession of States in respect of State Property, Archives and Debts 1983. It has not yet entered into force and is thus inconclusive as to the status of the topic under international law. The Convention is guided by the principle of equity, which has in practice made it useless in application to real-life situations. An interesting situation developed following the dissolution of the SFRY as to who was to be responsible for the above-mentioned categories; eventually it was decided that there was no State property which could be subject to State succession, given that all property in the SFRY was indeed state property.

Membership of international organisations and the nationality of natural persons

The general rule is that a successor State will not become a member of the UN or any other international organisation if the previous State is still in existence and a member of such an organisation (thus if a successor State is the continuation of a previously larger State, then it will automatically gain membership). If the successor State has evolved from the union of two States and one of these States was a member of an organisation, then membership will automatically apply to the successor State under its new name.

When a predecessor State ceases to exist, it is unclear as to what should happen to the nationality of its nationals; it is however obvious that these nationals do not automatically gain the nationality of the successor State, but that they should also not become stateless as a result of the succession.

Chapter 21. State responsibility

If a State breaches its international obligations it is responsible under international law. This is customary international law; comparable principles cannot be found in domestic law. In 2001 the International Law Commission (ILC) published its final version of the draft Articles on the Responsibility of States for Internationally Wrongful Acts, which while not a convention under international law are generally accepted by States and highly influential under international law. Any references to articles in this chapter, unless otherwise mentioned, refer to the draft Articles of the ILC.

A number of definitions must first be made of certain key concepts:

• International obligation: also known as a primary obligation; an obligation owed by one State to another under international law

• Primary rules: under international law, the rules which state whether an action is a breach of a primary obligation

• Secondary rules: also known as the law of State responsibility; those rules which determine whether a State is liable for the legal consequences of a violation of the primary rules

• Internationally wrongful act: occurs when a State has breached a primary obligation (a primary obligation can also be breached by other legal entities or persons)

• Injury: the consequences and effects of an internationally wrongful act on a State or its nationals

• Act: can include omissions also

• Person: includes all types of legal persons and entities

There are certain situations in which the Articles do not hold. The first is if one can speak of lex specialis, as stated in Article 55:

• • These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.

Secondly, if the Articles do not cover certain situations, this does not mean that these cannot be covered by customary international law providing for State responsibility:

• • The applicable rules of international law continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles.

Thirdly, and finally, the Articles “are without prejudice to the Charter of the United Nations”, as stated in Article 59.

When does State responsibility arise?

It is worth quoting the first three Articles in full, as they lay down the general principles governing State responsibility under international law:

• • Article l

Responsibility of a State for its internationally wrongful acts

• • Every internationally wrongful act of a State entails the international responsibility of that State.

  •  

  • Article 2

Elements of an internationally wrongful act of a State

• • There is an internationally wrongful act of a State when conduct consisting of an action or omission:

    • (a)  is attributable to the State under international law; and

    • (b)  constitutes a breach of an international obligation of the State.

• • Article 3

Characterization of an act of a State as internationally wrongful

The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.

As can be seen, the Articles do not state when a State is in breach of international law; they are thus merely secondary rules which define at what point the wrongful conduct a state will be attributable to it and what the legal consequences for it will be. Furthermore, the Articles do not say anything about the legal responsibilities of organisations or individuals.

There are several ways in which conduct can be attributed to a State. To do so is necessary to make the State responsible. Generally attributable State conduct will be exercised by the State’s organs of government or through its agents. Agents act under the orders of government organs. Article 4 defines these organs:

• • 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

  • 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Similarly, if a person which is not an agent of a governmental organisation but who has been given authority by the State to act in a certain manner and commits certain acts, then the State will be responsible for those acts also. This is stated in Article 5:

• • The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

  •  

Furthermore, if a State places its agents or organs at the disposal of another State, the acts of these agents or organs will be the responsibility of the State to which they have been given, as stated in Article 6:

• • The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

As long as an act is not purely personal, all actions by agents or governmental organs will the responsibility of the State. This includes actions which were not authorised by the State but were carried out through official State functions. This can be found in Article 7:

• • The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

There are also other forms of conduct beyond those described above which can be attributable to a State, and which can be found in Articles 8 to 11. Thus if (private) persons act on the directions of a State and these persons are under the effective control of the State, then their conduct is attributable to the State, as can be found in Article 8:

• • The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

There are three requirements which must be fulfilled if the acts of private persons are to be attributable to a State if there are exceptional circumstances at play (such as during a war). These can be found in Article 9 (emphasis added).

• • The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.

The Articles also discuss the status of acts committed by insurrectional movements in Article 10:

• • 1. The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law.

  • 2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law.

  • 3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.

Even if a conduct is not directly attributable to a State under Articles 4 to 10, it will become so if “the State acknowledges and adopts the conduct in question as its own” (Article 11). This must be done by more than mere support of the conduct.

When is State-attributable conduct a breach of its international obligations?

When does the conduct of a State amount to a breach of its international obligations? Article 12 states that “[t]here is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character”. An important rule can be found in Article 13, namely the intertemporal rule. This rule holds that the conduct of a State must be judged in accordance with its obligations under (customary) international law at the time the conduct took place: “An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs”.

It is also important to consider how to a breach of an international obligation continues. This is succinctly explained in Article 14:

• • 1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.

  • 2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.

  • 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.

In some cases, the breach of international obligations might occur through numerous separate acts. These are known as composite acts, and are provided for in Article 15:

• • 1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.

  • 2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.

There are certain situations in which the wrongfulness of an act or conduct is precluded, that is to say, that it is allowed under international law. These can be found in Chapter V of the Articles, and include:

• Consent by the otherwise injured State (Article 20)

• Lawful measures of self-defence (Article 21)

• Lawful countermeasures (Article 22)

• Acts as the result of force majeure, defined in Article 23 as: “the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation”.

• Acts that are the result of distress (Article 24)

• Because of necessity (Article 25)

Article 26 states that the above-mentioned defences do not allow a State to derogate from peremptory (jus cogens) norms. They do also not absolve the State from giving material compensation if necessary (Article 27(2)).

The responsibility of a State for internationally wrongful acts

The legal consequences of internationally wrongful acts are described in Articles 29-33. The first legal consequence is that of cessation and non-repetition, stated in Article 30:

• • The State responsible for the internationally wrongful act is under an obligation:

  • (a)  to cease that act, if it is continuing;

  • (b)  to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.

Article 31 states that the State has a responsibility to provide reparations:

• • 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

  • 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

This right to reparation does not need to be demanded by the injured State for the State in question to give reparation for its acts. Reparation can occur in a number of ways: through restitution, compensation or satisfaction (and these forms are not mutually exclusive). These forms of reparation are described in Article 34-39. Restitution is described in Article 35:

• • A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

  • (a)  is not materially impossible;

  • (b)  does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.

Compensation is one of the most prevalent forms of reparation. It is described in Article 37:

• • 1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.

  • 2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.

Such compensation can be awarded (such as by an international tribunal) even if it has not been demanded by the injured State. In some cases interest may be awarded if the compensation should have been paid at an earlier date. This is stated in Article 38:

• • 1. Interest on any principal sum due under this chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.

  • 2. Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled.

Compensation is also often accompanied by satisfaction, which is defined in Article 37:

• • 1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.

  • 2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.

  • 3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.

There are specific measures in place if a State breaches its obligations under peremptory norms by committing serious breaches. Such a breach is ‘serious’ if “it involves a gross or systematic failure by the responsible State to fulfil the obligation” (Article 40(2)). Article 41 describes the particular consequences of serious breaches:

• •  

  • 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.

  • 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

  • 3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.

The implementation of the international responsibility of a State

Article 42 describes the situating in which an individual State can invoke the responsibility of another State for breaches of its international obligations:

• • A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:

  • (a)  that State individually; or

  • (b)  a group of States including that State, or the international community as a whole, and the breach of the obligation:

    • (i)  specially affects that State; or

    • (ii)  is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

  •  

A claim for the invocation of responsibility must in essence be made to the responsible State in order for responsibility to arise. This claim can be made through as simple a means as mere protest by the injured State. This is described in Article 43:

• • 1. An injured State which invokes the responsibility of another State shall give notice of its claim to that State.

  • 2. The injured State may specify in particular:

    • (a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing;

    • (b) what form reparation should take in accordance with the provisions of part two.

    •  

There are however certain situations in which an injured State cannot make a claim; these can be found in Article 44 (emphasis added).

• • The responsibility of a State may not be invoked if:

  • (a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims; (described below)

  • (b) the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.

  •  

In some situations a State may also lose the ability to make claims, as stated in Article 45:

• • The responsibility of a State may not be invoked if:

  • (a)  the injured State has validly waived the claim;

  • (b)  the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.

The waiving of a claim can be inferred if there has been unreasonable delay to submit it; in any case, whether a State loses its right to make a claim depends on how severely it has been affected by the breach. Articles 46 and 47 provide rules for situations in which either a plurality of States have been affected or committed a breach together.

It is generally also accepted that a State can take countermeasures in response to a breach, given the extremely slow nature of the reparations process (although to take countermeasures is always a risk, as the injured State can be found to have committed these measures unlawfully). There are certain limits to countermeasures, which can be found in Article 49:

• • 1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two.

  • 2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.

  • 3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.

Furthermore, Article 50 states:

• • 1. Countermeasures shall not affect:

  • (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;

  • (b)  obligations for the protection of fundamental human rights;

  • (c)  obligations of a humanitarian character prohibiting reprisals;

  • (d)  other obligations under peremptory norms of general international law.

2. A State taking countermeasures is not relieved from fulfilling its obligations:

• • (a) under any dispute settlement procedure applicable between it and the responsible State;

  • (b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.

  •  

Countermeasures must in all situations be proportionate; Article 51 states: “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question”. An injured State must also fulfil a number of actions before it resorts to countermeasures. These actions can be found in Article 52:

• • 1. Before taking countermeasures, an injured State shall:

  • (a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two;

  • (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.

  • 2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights.

  • 3.Countermeasures may not be taken, and if already taken must be suspended without undue delay if:

  • (a)  the internationally wrongful act has ceased; and

  • (b)  the dispute is pending before a court or tribunal which has the authority to make decisions binding

  • on the parties.

  • 4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith.

Individual responsibility

It is also important to keep in mind that State responsibility does not preclude individual responsibility under international law. Article 58 states that: “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State”.

Chapter 22. Settlement of disputes

Article 33(1) of the UN Charter list several ways in which disputes between States can be settled (emphasis)

• • 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.

Dispute settlement mechanisms can be divided into those which are voluntary and those which are compulsory; voluntary mechanisms are generally non-legally binding, whilst compulsory mechanisms generally are.

Informal means of dispute settlement

Parties to a dispute will generally first seek to settle their differences by negotiations. This is because negotiations are often less politicised than more public settlement mechanisms, and also far more flexible. The parties have complete control of the process. Sometimes, it is however necessary to involve a third party in the proceedings, although it is often difficult for the parties to agree upon who should be the mediator.

Consultations and negotiations are for the most part the same; the only exception is that consultations are generally expected to be followed by a third-party settlement procedure. The outcome of negotiations must be recorded for it to be successful as a solution to the dispute. This can be done by a treaty, public statement, or (unrecorded) MOU. Unsuccessful negotiations may result in the termination of the relevant treaty between the parties to the dispute; such a termination will allow new negotiations to begin.

Conciliation is described in the Annex to the Vienna Convention on the Law of Treaties 1969, with regards to its own mechanism, the Conciliation Commission:

• • 4. The Commission may draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement.

  •  

  • 5. The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute.

The model of the Vienna Convention has been adopted in numerous multilateral treaties since. Most commissions consist of three to five members, with two national members representing the parties to the dispute, and one to three neutral members chosen by the national parties. The States involved are bound to appoint their national members; this is necessary to ensure that none of the parties can obstruct the continuation of the process. Unfortunately, conciliation is usually more expensive. Its results are ultimately non-binding, as expressed by the Annex to the Vienna Convention 1969:

• • 6. The Commission shall report within twelve months of its constitution. Its report shall be deposited with the Secretary-General and transmitted to the parties to the dispute. The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute.

  •  

Conciliation can thus seen to be as less effective than arbitration or judicial settlement, which are equally expensive but not binding upon the parties to the dispute.

Mediation is the result of an agreed intervention by a third party to reconcile the differing claims of parties with a dispute. The mediator will then propose a compromise solution, which is generally more political and than legal in nature. Good offices are similar to mediation.

Compulsory binding settlement

Two parties must consent to settle their dispute by compulsory means. Compulsory binding settlements usually occur through international tribunals. Such tribunals must first decide whether they have jurisdiction over the case and whether the case is admissible before they can make any legally binding decisions. Jurisdiction is conferred on the tribunal by the previous consent of the States. There are a number of ways in which jurisdiction can be conferred:

• Compromissory clauses in treaties in which the parties agree to submit their disputes surrounding the treaty to judicial settlement or arbitration

• Treaties in which the signatories agree to submit all their future disputes to judicial settlement or arbitration. Thus non-treaty related disputes are also included

• Separate protocols to treaties in which is agreed to arbitration or judicial settlement

• A compromis, which is a separate agreement surrounding the establishment and procedure of an arbitral tribunal

For a dispute to be settled by an international tribunal, it is also necessary for the purpose of jurisdiction that there is indeed a legal dispute. The term is defined in Article 36(2) of the ICJ Statute:

• • 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 concerning:

  • a. the interpretation of a treaty;

  • b. any question of international law;

  • c. the existence of any fact which, if established, would constitute a breach of an international obligation;

  • d. the nature or extent of the reparation to be made for the breach of an international obligation.

  •  

It is also important for the Court to examine whether it has jurisdiction ratione temporis. The most common claims against the admissibility a case are that the applicant does not have a legal interest in the case (such as if the person involved is not a national of the State and thus the respondent State did not have a responsibility towards the applicant; this is known as the nationality of claims rule) and that there has not yet been an exhaustion of all possible local remedies. A more outdated claim of inadmissibility is that of non liquet, namely that a tribunal does not have the authority to make a decision in a case because there is a lacuna in international law regarding the topic at hand.

International arbitration

Arbitration occurs when a dispute is referred to a judge or multiple judges, who make an arbitral ‘award’. The judges’ decision is binding. There are usually multiple arbitrators, one for each of the parties and one or more neutral arbitrators. Arbitration is sometimes favoured over judicial settlement because parties have greater control over the process, which might produce a speedier and more favourable decision.

In 1899 the Permanent Court of Arbitration was established by the Hague Convention for the Pacific Settlement of International Disputes 1899. Its seat is in the Peace Palace in the Hague. It provides courtrooms, chambers, offices, a library, potential arbitrators, a secretariat and arbitration rules to facilitate arbitrations. Parties are quite free to determine the way in which the arbitration will take shape. Many of its recent cases have involved corporations and private entities.

There are also mixed arbitral tribunals, which adjudicate between a corporation or natural person and a foreign State. In the past century there have been two important mixed tribunals; both are still in existence. The first is the Iran-United States Claims Tribunal; the second the UN Compensation Commission.

International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the UN. Its statute is included in the UN Charter, and its employees are employed by the UN. It is however not connected to the UNSC like the ICTY and ICTR, and thus preserves its independence. Its seat is also at the Peace Palace in the Hague. It is a permanent body, and thus always able to hear claims and cases; no fee is necessary. Proceedings are also able to proceed quite quickly. It has become more and popular as time has gone by. It is generally agreed that the ICJ does not have the power of judicial review, that is to say, the power to determine whether the actions of, for example, the UNSC are in line with the purposes of the UN Charter.

There are fifteen judges, each with nine-year terms. They represent the main legal systems of the world, as well as all the regions of the world: three are from Africa, three from Asia, two from Eastern Europe, two from Latin America and the Caribbean and five from Western Europe. Judges are voted in by the UNGA and UNSC. The President and Vice-President are each elected for three years. It does not matter if a judge is the same nationality as one of the States involved in a case; a State can even request that there be an ad hoc judge that is one of its nationals.

The jurisdiction of the ICJ is limited. Only States can be parties to a case. It only has civil, not criminal jurisdiction. Its jurisdiction to hear a case is conferred by the parties involved. The jurisdiction of the Court is set out in Article 36(1)-(2):

• • 1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

  • 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

  • a. the interpretation of a treaty;

  • b. any question of international law;

  • c. the existence of any fact which, if established, would constitute a breach of an international obligation;

  • d. the nature or extent of the reparation to be made for the breach of an international obligation.

States can also accept the compulsory jurisdiction of the ICJ by making a reciprocal declaration. At the moment 66 States have made such declarations, half of which are developing countries. A case made on the basis of such a declaration must be reciprocal between the two parties – that is to say, both of them must have made it. A State may attach reservations when it makes a declaration, as is stated in Article 31(5). There are several common types of reservation:

• The exclusion of certain types of disputes

• Resorting to other means of settlement of disputes

• Placing time limitations on jurisdiction

• Reservations excluding all cases that are within the domestic jurisdiction of the State

Claims against the admissibility of a case rarely succeed at the ICJ. The Court has however concluded that it does not have jurisdiction in a number of situations, such as if the claim is hypothetical and not with a real purpose, the claim has become moot since the application or the applicant States do not have a legal interest in the case. Similarly, if States with a significant legal interest in the case are not parties to the application, then the ICJ has ruled that it will not hear the case. On this point it is also relevant to take into account Article 53, concerning the non-appearance of a State before the Court:

• • 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.

  • 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

Five such cases have thus far been decided. The law which can be applied by the ICJ can be found in Article 38:

• • 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

  • a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

  • b. international custom, as evidence of a general practice accepted as law;

  • c. the general principles of law recognized by civilized nations;

  • d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

  • 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

  •  

Article 41 gives the Court jurisdiction to impose binding provisional measures at the start of a case, which are sometimes also known as interim measures of protection:

• • 1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.

  • 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

  •  

Such provisional measures can be undertaken if it possible that something might occur which would make the outcome of the case futile; the requesting party must prove that its rights are under extreme prejudice and in need of protection (such as in cases of imminent genocide). The ICJ can grant such measures if it has determined that it has prima facie jurisdiction.

If one is researching the procedure and practice of the ICJ, a number of sources are of use:

• The ICJ registrar

• The ICJ Statute

• The Rules of ICJ

• The Practice Direction

To date, the ICJ has delivered more than 100 judgements. Article 59 states that the judgements of the ICJ are res judicata, stating that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case”. Furthermore, Article 60 states that a “judgement is final and without appeal. In the event of dispute as to the meaning or scope of the judgement, the Court shall construe it upon the request of any party”. Article 61 provides restrictive situations in which the court can be asked to revise its judgement:

• • 1. An application for revision of a judgement may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgement was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.

  • 2. The proceedings for revision shall be opened by a judgement of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.

  • 3. The Court may require previous compliance with the terms of the judgement before it admits proceedings in revision.

  • 4. The application for revision must be made at latest within six months of the discovery of the new fact.

  • 5. No application for revision may be made after the lapse of ten years from the date of the judgement.

UN members are obliged to comply with ICJ judgements if it is a party to the dispute; if the Court’s decision is not respected, then the Court can ask the UNSC to undertake action, as is stated in Article 94 of the UN Charter:

• • 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

  • 2. If any party to a case fails to perform the obligations incumbent upon it under a judgement rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgement.

The ICJ is also allowed to give advisory opinions if a request to do so is made and the Court acquiesces. This is stated in Article 65:

• • 1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

  • 2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

Similarly, Article 96 of the UN Charter states:

• • 1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

  • 2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

  •  

Thus individual States or organisations cannot ask for the Court to give an advisory opinion, although they can notify the Court of their desire for such an opinion.

Chapter 23. The European Union

The EU came into existence in 1958. It started out as the European Coal and Steel Community (ECSC) in 1952, and the European Economic Community (EEC) and the European Atomic Energy Community (Euratom) in 1957. These European Communities were merged in 1992 with the Maastricht Treaty on European Union 1992 (TEU). The aim of the EU is to bring its members closer together in terms of their economies, politics, and social lives.

The dates of accession are as follows:

• 1952: France, Germany, Italy, Benelux

• 1973: United Kingdom, Ireland, Denmark

• 1982: Greece

• 1986: Portugal, Spain

• 1995: Austria, Finland and Sweden

• 2004: Cyprus, Czech Republic, Estonia, Latvia, Hungary, Lithuania, Malta, Poland, Slovakia, Slovenia

• 2007: Bulgaria, Romania

There are several important institutions within the EU:

• The Council of Ministers

• The Commission

• The European Parliament

• The European Court of Justice

• The Court of Auditors

Legislation in the EU can be adopted by consultative or co-decision procedures. The law of the EU is composed of the following:

• The Lisbon treaty

• Any treaties between member States or between the EU and third States

• Legislation of the EU

• Decisions of the Court of Justice and the Court of First Instance

• The general principles of law

What is specific to EU law is that it is directly applicable within all member States. This means that it does not need to be incorporated into the domestic law of a State to be legally binding. EU law also has direct effect, which means that the provisions of EU law can be used against a State in its own courts. EU law is also above domestic law in the hierarchy of laws within Europe.

The ECJ often interprets legal provisions teleologically; that is to say, by looking at their object and purpose. Its jurisdiction is described in Article 226-228 of the Lisbon Treaty, as well as Article 235 and 230. The Court of First Instance was created in 1989 in order to relieve some of the high workload of the ECJ. The EU also has a court to guarantee the protection of human rights within the region, the European Court of Human Rights (ECtHR), which was created in 1950. All members states are bound by the ECHR.

A number of terms are important to know if one is studying the EU:

• Acquis communautaire: the sum of all of the achievements of the European Union and earlier Community, such as treaties. All new members must accept the acquis to become a member.

• Competence: this phrase states who is responsible and has power over a particular matter.

• Comitology: the implementation of EU legislation by a specialist committee within the Commission

• European Economic Area: an agreement between the members of the EU and the European Free Trade Area (EFTA). Allows a free market within all territories.

• Languages: because of its size, the EU has several official languages (21, in fact)

• Qualified majority voting (QMV): the minimum of 255 votes, cast by a majority of the members, which is needed for a proposal to pass.

• Schengen: stands for the 1990 Agreement which abolishes immigration checks within EU member States, as well as a common visa policy for those coming from third States

• Subsidiarity: the principle that all decisions of the EU must be as close to the citizen in their decision-making process as possible

The Lisbon treaty

The Lisbon treaty entered into force in 2009. The Lisbon treaty makes a number of changes with respect to earlier EU legislation:

• The merging of the European Communities (except Euratom) into the European Union

• The conferring of legal personality to the Union

• The renaming of the Council of Ministers as the Council

• To require all proposals in the Council to gain 55% or more of the votes to be adopted

• To create a person who effectively is the EU minister of foreign affairs

• To reduce the number of commissioners

• To reduce the seats in the Parliament

• To strengthen the Parliament

• To give the Charter of Fundamental Rights legal force by integration into earlier foundational treaties

• To allow the Union to accede to the European Convention of Human Rights

• To allow member states to withdraw from the Union

Glossary

Year of publication

Published in 2013