The principal actors in international law are nation-states, not individual citizens like in domestic or municipal law. International law is divided into conflict of law, private international law and public international law. The latter is usually termed ‘international law’. Public international law covers relations between states in all their forms, and regulates the operations of the many international institutions. It may be universal or general, binding upon all states, or regional, binding upon a select group of states.
International law has no legislature. There is no system of courts operating outside the situation when both parties agree and recognize the concerned Court. International law is constituted in a very different manner than domestic law. Also, there is no unified system of sanctions in international law, but there are circumstances in which the use of force is regarded as justified and legal. Within the United Nations, the Security Council can impose sanctions upon the determination of a threat to the peace, a breach of the peace or an act of aggression. Such sanctions may be economic or military. Another justification of the use of force is in the case of self-defense, but it is bound to rules provided by international law. It is important to realize that states do feel the need to obey the rules of international law, because if they do not act accordingly, the system of international law ceases to exist.
The international system
The international system has a horizontal structure; all states are considered equal. In municipal law, the law is above individuals, but in international law the law only exists between the states. Also, in municipal law, the individual has no influence on the creation of law. In international law, states create it themselves, as international law consists mostly of agreements and treaties developed and signed by states. An important element for states in order to obey international law is the principle of reciprocity. States often do not pursue one particular course of action which might bring them short-term gains, because it could disrupt the mesh of reciprocal tolerance which could bring long-term disadvantages. By acting reasonable and moderating demands, states encourage other states to act accordingly. Another significant factor is the advantage that may occur in certain situations when a state chooses to obey international law. For instance, obeying international law can be an appeal to public support. No individual state has ever sought to maintain that it is free to object to the system as a whole, and the influence one state has is limited. Politics play a much bigger part in international law than it does in municipal law. Where power politics focuses on survival and influence, causing competition and conflict, international law aims for harmony and regulation of disputes.
Historical development
The foundations of international law as it is understood today, lie in the development of Western culture and political organization. Its earliest origins can be found in Mesopotamia, Egypt and in the Far East. A universal community with an ideal world order was not in evidence, but the principle of the sanctity of treaties was. European thought was added to international law in Ancient Greece, and the Ancient Romans developed it further into their jus gentium, and were responsible for spreading their system throughout their empire.
During the Middle Ages, characterized by the authority of the organized Church, the legal system of the Holy Roman Empire and the supranational canon law, were the reigning approaches. Commercial and maritime law developed as well, as was the English Law Merchant; a code of rules covering foreign traders, which was declared to be of universal application. After the Middle Ages, the rise of the nation-states characterized the process of territorially consolidated independent units, and the emergence of the doctrine of sovereignty (in particular in France and England). This led to a higher level of interaction between the nation-states, which called for more regulation of such activities. The theory of sovereignty gave the state supreme power vis-à-vis other states, making the state the supreme legislator and putting the state above the law. Alongside this development, there was the rise of Natural Law (its main theorist Thomas Aquinas); the foundation of moral behavior as well as of social and political institutions, according to its theorists. When international law began to emerge as a separate topic, many of its principles were derived from Natural Law.
The essence of the new approach to international law can be traced back to the Spanish philosophers from the Golden Age, such as Francisco Vitoria. He criticized the Spanish conquest of South America, claiming that war can only be justified on the grounds of a just cause. He emphasized that international law was based on the universal law of nature, which meant that it also included non-Europeans. Vitoria did not recognize the Indians as equal to Europeans but it was a step in the right direction. Another important scholar in the development of international law was Hugo Grotius (de Groot), celebrated as the father of international law, because of his book De Jure Belli ac Pacis. One of his most enduring opinions was his proclamation of the freedom of the seas.
Following Grotius, two different schools of thought emerged: positivism and naturalism. Naturalism, exemplified by Samuel Pufendorf, attempts to identify international law completely with the law of nature. Positivism, exemplified by Richard Zouke, among others, distinguishes between international law and Natural Law, and emphasizes practical problems and current state practices. Positivism developed as the modern nation-state system emerged, especially after the Peace of Westphalia in 1648.
The nineteenth century was a practical, expansionist and positivist era, marked by the Congress of Vienna, after the Napoleonic wars in 1815. A new international order emerged, based on the European balance of power. International law became Eurocentric; it reflected European values, but due to expansion of the European empires, it did become geographically internationalized. Democracy and nationalism spread as well, and the Industrial Revolution propelled Western influence around the world. The proliferation of the power states and the sophistication of municipal law lead to the thought that law was issues by a particular sovereign, which international law still lacked. The growth of international agreements, customs and regulations tackled this problem, as did the widely accepted principle of pacta sunt servanda.
The First World War undermined the foundations of European civilization. The balance of power no longer functioned, and in the 1919 Peace Treaty, the League of Nations was created. This remained a basically European organization. among other things, the absence of the US and the Soviet Union lead to the League not functioning as it was intended, and to the fact that it was not able to prevent the Second World War. In 1921, the Permanent Court of International Justice was set up, which was succeeded by the International Court of Justice in 1946. Also in 1946, the trauma of the Second World War and the failure of the League led to the establishment of the United Nations. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organizations have established the essence of international law as it exists today.
The Communists approached international law and politics as the means whereby the ruling classes maintained their dominance of society. Capital and labor were the opposing theses and their mutual antagonism would eventually lead to a revolution out of which a new, non-exploitive form of society would emerge. Classical international law was founded upon the state and would go in that revolution too. After the Russian Revolution, the Soviet Union was only bound by those rules of international law that accorded with their purposes. A ‘socialist’ international law was developed, who’s principles constituted a unified system of international legal principles between countries of the socialist bloc arising by way of customs or treaty. The basic principles of respect for state sovereignty, non-interference in internal affairs and equality of states and peoples were combined with the lack of economic rivalry and exploitation and by increased co-operation.
Since the Second World War, the third world as a whole has developed immensely. Former colonies have become independent and the representation in international organizations has increased, especially in the General Assembly of the UN.
The expanding legal scope of international concern
There is a continuing tension between those rules that are already established and the constantly evolving forces that seek changes within the system. An example of this friction is the development of nuclear arms, which created an unprecedented balance of terror in the world. International law was not equipped to deal with this problem and needed to react by developing new laws. Nowadays, the increasing power of international terrorism creates similar issues.
The Eurocentric attitude of international law has decreased over the last sixty years. Also, the focus is expanding to non-state actors such as international organizations, and to other, upcoming, issues such as environmental problems.
The individual responsibility in international law has increased, partly by the Nuremberg and Tokyo Tribunals after the Second World War, where individuals were punished by international courts, without usual interposition of the state. The same process leads to individuals being protected by international human rights, even against their own state.
Another element in modern international law is the evolution of international organizations, the most important one being of course the UN. These organizations have been accepted as possessing rights and duties of their own and have a distinctive legal position. Regional organizations have grown as well, for reasons of military security, like NATO, or for the expression of regional and cultural identity, such as the African Union. The European Union is the most developed regional organization. These organizations have lead to the development of ‘regional-international law sub-systems’.
Modern theories and interpretations
Positive Law and Natural Law:
The positivist school declared that law as it were, should be analyzed empirically, shorn of all ethical elements. Practical realities were key, moral elements did not matter. Law builds upon law, a rule becomes a legal rule if it is in accordance with a previous, higher, legal rule and so on. One of the prime rules of positive law is pacta sunt servanda, upon which a second stage is based, consisting of the network of norms created by international treaties and conventions. This leads to the third stage, which includes those rules established by organs which have been set up by international treaties, for instance, decision of the International Court of Justice. The strength of this approach gradually decreased in the last century as old certainties disintegrated and social unrest grew.
The school of Natural Law has developed a variety of different approaches. One of them has been a refurbishment of the principles enumerated by Aquinas and adopted by the Catholic Church, emphasizing the dignity of man and the supremacy of reason together with an affirmation of the immorality of law contrary to right reason and the eternal law of God. Another approach contrasts the ‘concept’ of law, which was intended to be an abstract, formal universally applicable definition, with the ‘idea’ of law, which embodies the purposes and direction of the system. The latter varied in different social and cultural contexts. The influence of Natural Law in modern international law is seen especially in human rights and in principles like that of non-aggression.
New approaches:
After the Second World War, a growing trend emerged in the analysis of power politics, and the comprehension of international relations in terms of the capacity to influence and dominate. It does involve a consideration of social, economic and political data, but it is essentially a pessimistic interpretation, because of its centering upon power.
Another successful approach is the behaviorist movement. This train of thought introduced elements of psychology, anthropology and sociology into the study of international relations. It reflected the altering emphasis from analysis in terms of idealistic or realistic conceptions of the world political order, to a mechanistic discussion of the system as it operates today, by means of field studies and other tools of social sciences. Behaviorism has divided the field of international relations into basically two studies; the first being a consideration of foreign policy techniques and the reasons whereby one particular course of action is preferred to another, and the second constituting the international systems analysis approach. This emphasizes the interaction of the various actors on the international stage and the effects of such mutual pressures upon both the system and its participants.
A third theory is the policy-orientated movement. It regards law as a comprehensive process of decision-making, rather than as a defined set of rules and obligations. It is an active, all-embracing approach, seeing international law as a dynamic system operating within a particular type of world order. It minimizes the role of rules and emphasizes the changing nature of law. Eight value-institution categories have been developed to analyze this process: power, wealth, enlightenment, skill, well-being, affection, respect and rectitude.
Criticism on theories have led theorists to return to the important question of why states obey international law despite the undeveloped condition of the international legal system’s structures, processes and enforcement mechanisms. The answer lies in the concept of legitimacy. States will obey the rules because they see such rules and their institutional framework as possessing a high degree of legitimacy. Legitimacy itself is defined as ‘a property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively, because those addressed believe that the rule or institution has come into being and operated in accordance with generally accepted principles of right process’. It is suggested to depend upon four specific properties: determinacy, symbolic validation, coherence and adherence.
A last approach is the critical legal studies approach, sometimes termed the ‘New Approaches to International Law, or NAIL. It notes the close relationship that exists between law and society, but emphasizes that conceptual analysis is also crucial since such concepts are not in themselves independent entities, but reflect particular power relationships.
In international law, there is no single body able to create laws that are binding upon everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. One needs to look at the ‘sources’ of international law, meaning those provisions operating within the legal system on a technical level. Such ultimate sources are excluded as reason or morality, as are more functional sources, such as libraries and journals. What is intended is a survey of the process whereby rules of international law emerge. Art. 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative and complete statement of the sources of international law. It provides that ‘the Court’, whose function is to decide (in accordance with international law), whether submitted disputes apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international customs, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provision of Art. 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.
Customs
A custom is an authentic expression of the needs and values of a community at any given time. The existence of customary rules can be deduced from the practice and behavior of states, which is what makes it difficult to determine whether or not it is a source of law, for states do not need to act in a legally responsible manner. Also, its development is too slow for the dynamic nature of international law. Although there is much criticism on the use of customs in international law, it still remains an important source. As stated in Art. 38, the essence of a custom is that is should constitute an ‘evidence of a general practice accepted as law’. So, the actual behavior of states is important, as is the psychological or subjective belief that such behavior is considered ‘law’. In the Libya/Malta-case, the International Court noted that the substance of customary law must be ‘looked for primarily in the actual practice and opinio juris of states’.
Regarding the nature of actual practice engaged in by states, there are a number of points to be considered. There are its duration, consistency, repetition and generality. As far as duration is concerned, this is a factor to be determined by states themselves and is therefore not essential in determining the components of state practice. The same goes for generality, the determination of that aspect is too subjective. Continuity and repetition are important, as the Court has declared in the Asylum-case that a customary rule must be ‘in accordance with a constant and uniform usage practiced by the States in question’.
The threshold that needs to be attained, before a legally binding custom can be created, will depend upon both the nature of the alleged rule and the opposition it arouses. It is mainly the international context that plays a part in the creation of customs. This is shown in the statement that for a custom to be accepted, it must have the concurrence of the major powers in that particular field.
State practice is how states behave in practice, that forms the basis of customary law, but evidence of what a state does can be obtained from numerous sources, like legislation or administrative acts. International organizations are also responsible for the creation of customary law. This can be found in advisory opinions of the International Court of Justice, or resolutions adopted by the UN Security Council.
Customary international law can be established by acquiescence, which is equivalent to tacit recognition manifested by unilateral conduct, which the other party may interpret as consent. Generally, where states are seen to acquiesce in the behavior of other states, the assumption must be that such behavior is accepted as legitimate. In other words, the absence of protest implies agreement. When a state protests to a new rule of customary law, it often does not stop the development of such rule, but it can lead to the protesting state not being bound by the rule.
Treaties
Treaties are referred to in Art. 38 as international conventions, and are a more modern and deliberate method of creating international law. Treaties are known by a variety of names, all referring to a similar transaction, the creation of a written agreement whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves. These agreements are obligatory, founded upon the customary international law that agreements are binding, pacta sunt servanda. There is a distinction between ‘law-making’ treaties and ‘treaty-contracts’. Parties that do not sign and ratify a particular treaty are not bound by its terms, except when the treaty deals with customary international law, which binds all.
Other possible sources of international law
The distinction is made between law-making, law-determining and law-evidencing. Another type of law ‘soft law’, which refers to non-binding instruments or documents, or non-binding provisions in treaties. Soft law is not law. The International Law Commission has played a key role in the development of treaties. It prepares a draft on a topic on which it has decided, which is submitted to various states and is usually followed by an international conference. Eventually a treaty will emerge.
Apart from creating these drafts, the ILC has also issued numerous reports and studies, making it an essential body in the development of international law. Another source of international law is the unilateral act. Although not a source of law according to art 38, a unilaterally made statement may lead to international obligations.
Hierarchy of sources and jus cogens
It is clear that judicial writings and hearings, and other interpretative sources, are subordinate to the sources of treaties and customs. However, which of these two has priority is difficult to determine. The general rule of lex posterior would give priority to treaties, as they often codify certain customs. For all that, the two may very well co-exist. Rules of jus cogens always prevail. Jus cogens is established in two stages: first, the establishment of the proposition as a rule of general international law, and second, the acceptance of that rule as a peremptory norm by the international law community of states as a whole.
Legal personality – introduction
When a certain entity possesses legal personality, it is assigned rights and duties. Whether an entity has legal personality, depends on the scope and character of the law, which also determines the scope and nature of personality. Personality in international law necessitates the consideration of the interrelationship between rights and duties afforded under the international system and capacity to enforce claims. Many different entities possess legal personality under international law, such as states and international organizations, but also public and private companies, and individuals. It consists of participation and some form of community acceptance.
States
States remain the most important legal persons in international law. Requirements for being a state are: the existence of a permanent population, a defined territory (although a state can be acknowledged when it is in a dispute over its borders), some sort of coherent political structure and society. Another indication of a state possessing legal personality is its capability to enter into relations with other states. This also implies the recognition of other states. The essence of such capacity is independence; a crucial element of statehood. Also important is the legal right to self-determination.
A state has certain fundamental rights, the first being its independence and sovereignty. The notion of independence in international law implies a number of rights and duties, for example: the right of a state to exercise jurisdiction over its territory and permanent population, or the duty not to intervene in the internal affairs of other sovereign states. The legal rights and duties are equal to all states. The 1970 Declaration on Principles of International Law states that: ‘All states enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or any other nature.
Forms of a state are protectorate and protected states. In a protectorate state, the entity concerned enters into an arrangement with a state under which there is no separate statehood, although separate legal personality may be involved. In the case of the protected state, the entity concerned retains its status as a separate state, but enters into a valid treaty relationship with another state, affording the latter certain extensive functions; possibly internally and externally. Another form of the state is a federation, or confederation. These involve the distinction between central and local organs. A confederation implies a more flexible arrangement, which leaves a considerable degree of authority and competence to the detriment of the central organ.
Sui generis territorial entities
After the First World War, mandated and trust territories were developed, which left the colonies of the defeated Allies uncared for. These territories would be governed, according to the principle of ‘the well-being and development of such peoples form a sacred trust of civilization’. Advanced nations should concern themselves with the responsibility for such states. The League of Nations was to supervise this. After the Second World War, this responsibility was transferred to the UN. Over time, the states gained independence of their own.
Other forms of sui generis territorial entities are for instance condominiums, which occur when two or more states equally exercise sovereignty with regard to a territory and its inhabitants. Associations of states are also a form of territorial entity. These kinds of entities do not automatically possess legal personality, the degree of legal personality depends on the situation and circumstances.
People's right to self-determination
Since the First World War, the people's right to self-determination began to play a part in international law. Since then, it made a lot of progress, with the principle playing a prominent role in the UN Charter and the fact that the Security Council has included it in many of its resolutions. Nowadays, it has almost become customary international law, but whether it really is opinio juris needs to be determined by careful assessment and judgment.
Concerning former colonies, the principle of self-determination provides that the people of a defined territorial unit may freely determine their own political status. Such determination may result in independence, integration with a neighboring state, free association with an independent state or any other political status freely decided upon by the people concerned.
Individuals
The object theory regarding individuals in international law maintains that individuals constitute only the subject-matter of intended legal regulation as such. Only states, and possibly international organizations, are subjects of international law. This is an ambiguous approach, as international law’s ultimate concern lies with the protection of human rights. Basically, the question of legal personality of individuals under international law extends to questions of direct criminal responsibility, but the role of the individual to appeal to international courts is becoming increasingly relevant.
International organizations
Whether an international organization possesses personality in international law depends on its constitutional status, its actual powers and practice. Significant factors in this context include the capacity to enter into relations with states and other organizations and conclude treaties with them, and the status it is given under municipal law.
Recognition is the acknowledgement of new states as entities with legal personality. If an entity is recognized as a state, it has certain rights and duties. The enormous consequences of recognition, internationally and domestically, make it more than a mere legal process, it depends more on political considerations.
Recognition of states
There are two theories on the nature of recognition. The first is the constitutive theory, which maintains that it is the act of recognition by other states that create a new state and endows it with legal personality. This theory puts the importance of recognition over that of the process of obtaining independence. New states are established by the value which the international community gives them. Two problems arise from this approach. To start of with, when a state is not recognized by others, it would officially not have to obey international law. Then, what happens when some states recognize a state, and others do not?
The second theory is the declaratory theory, which adopts the opposite approach. It maintains that recognition is merely an acceptance by states of an already existing situation. States acquire international legal personality by circumstance, not purely by recognition of others.
Actual practice shows a middle way between the two theories. The act of recognition by one state of another state indicates that the former regards the latter as having conformed with the basic requirements of international law as to the creation of a state. Recognition is an active process and should be distinguished from cognition, or the mere possession of knowledge. For example, the entity involved should comply with basic international legal stipulations such as statehood, yet again, it implies both the cognition of the necessary facts and an intention that the state is willing to accept the legal consequences of recognition.
Recognition of governments
The question of recognition of governments is only relevant when it concerns an unconstitutional change in government. When a state recognizes the government of another state, it implies that it is willing to accept the legal consequences, such as the granting of immunity, or dealing with the new government. In this area, political considerations play a major part as well. An approach which is often used, is that recognition should not be withheld when a government effectively controls the country and when that seems likely to continue. This is known as the effective control doctrine. When a new government is recognized by other states, this adds to its legitimacy. However, when a strong government is in place, non-recognition will not effect its legal character.
Other approaches to the recognition of government, other than the effective control doctrine, are the doctrine of legitimacy, which implies that recognition initially comes from the people of the state accepting the new government, and the doctrine advocating automatic recognition of governments in all circumstances.
A change in government does not affect the identity of the state itself, but it is possible that recognition of state and government occur together in certain circumstances, like when a new state is created.
Jurisdiction concerns the power of the state under international law to regulate or otherwise impact upon people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs. It is achieved by means of legislative, executive or judicial action. International law sets rules dealing with the limits of a state’s exercise of governmental functions and conflict of laws (or private international law) attempts to regulate in a case involving a foreign element whether the particular country has jurisdiction to determine the question, and if it has, the rules of which country will be applied in resolving the dispute. These rules are more focused on disputes like foreign marriages.
The principle of domestic jurisdiction
While a state is sovereign within its own territory, it must not intervene in the domestic jurisdiction of other states, therefore, many internal affairs are beyond the reach of international legal control. However, when internal regulation has international repercussions, it does fall under international law, as noted in the Nottebohm-case, where the Court states that the exercise of diplomatic protection falls under international law, and that no state may plead its municipal laws as a justification for the breach of an obligation of international law, also declared in Art. 2(7) of the UN Charter.
Legislative, executive and judicial jurisdiction
Legislative jurisdiction relates to the supremacy of the constitutionally recognized organs of the state to make binding laws within its territory. The state has this power, but when a state adopts laws that are contrary to the provisions of international law or when it abuses the rights it possesses to legislate for nationals abroad, it may be guilty of a breach of international law. Executive jurisdiction relates to the capacity of the state to act within the borders of another state, which is not allowed unless a state has explicit consent of the state concerned. Judicial jurisdiction concerns the power of the courts of a particular country to try cases in which a foreign factor is present.
Criminal jurisdiction
There are a number of grounds on which international law permits (not obligates!) states to exercise jurisdiction. The first and most important one is the territorial principle, the state should be able to legislate with regard to activities within its territory and to prosecute for offences committed upon its soil. All crimes committed within the territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced, even when the offender is a foreign citizen.
This also means that the courts of one country do not have jurisdiction with regard to events that have occurred in another state. When part of a crime is committed in one state, and part of it in another, both states have jurisdiction over the offender. Courts look at the circumstances to determine which country can try the offender. The Lotus-case is a good example of territorial sovereignty in criminal acts. The French steamer the Lotus collided on the high sea with the Boz-Kourt, a Turkish vessel, killing eight Turkish passengers. The Turkish authorities arrested the French officer when the Lotus reached a Turkish port. He was charged with manslaughter, against which France protested claiming Turkey did not have jurisdiction. The Permanent Court of International Justice rejected the French claim that the flag ship had exclusive jurisdiction over the ship on the high seas, stating that no rule like that has emerged in international law. The Court also stated that the damage to the Turkish vessel was equivalent to affecting Turkish territory so as to enable that country to exercise jurisdiction on the objective territorial principle, unrestricted by any rule of international law prohibiting this.
The nationality principle means that by virtue of nationality, a person becomes entitled to a series of rights. Nationals are entitled to protection of their state and to various benefits prescribed under international law. There is no general definition of nationality in international law, it mostly leaves it to domestic jurisdiction of states. The concept of nationality provides the link between the individual and the benefits of international law. The two most important principles upon which nationality is founded are first by descend of parents who are nationals (jus sanguinis) and second by virtue of being born within the territory of the state (jus soli).
Under the passive personality principle, a state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the state. The overall opinion on this principle is that it is a rather dubious ground upon which to claim jurisdiction, however, ‘the international community recognizes its legitimacy’, as states by the Court in US v. Tunis 2. The US arrested a Lebanese citizen for hijacking an airplane which carried US citizens, and the Court ruled in favor of the US, stating it had jurisdiction based on the passive personality principle.
The protective principle provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned. It is justifiable on the basis of protection of a state’s vital interests, but it is a principle that can easily be abused. It is often used in treaties providing for multiple jurisdictional grounds with regard to specific offences.
Under the universality principle, each and every state has jurisdiction to try particular offences. The crimes involved, in particular piracy and war crimes, are regarded as explicitly offensive to the international community as a whole. In the case of war crimes, Art. 6 of the Charter of the International Military Tribunal of 1945, which has become part of international law, refers to crimes against peace, violations of the law and customs of war and crimes against humanity as crimes for which there was to be individual responsibility. The four Geneva ‘Red Cross’ Conventions of 1949 also contain provisions for universal jurisdiction over grave breaches like torture or inhuman treatment. Crimes against humanity differ from war crimes in applying beyond the context of an international armed conflict, but cover essentially the same offences.
There are a number of treaties which provide state jurisdiction for the suppression by the international community of various activities, like drug trafficking. Many treaties follow the quasi-universal jurisdiction model, in which for example a pirate is apprehended on the high seas and then prosecuted in a state. When states sign a treaty they ensure that they admit the acts punishable by the treaty to their domestic laws.
The practice of extradition enables one state to hand over to another state suspected or convicted criminal who have fled to the territory of the former. It is based on bilateral treaty law and does not exist as an obligation upon states in customary law. In general, offences of a political character have been excluded, but that does not cover terrorist activities. The European Convention on Human Rights declares that states may not extradite to another state which might torture of inhumanely treat the person concerned.
Extraterritorial jurisdiction
Especially in the context of economic issues, some states seek to apply their laws outside of their territory in a manner which may precipitate conflict with other states. This is also known as the ‘effects’ doctrine and is used in particular by the US. Many states developed blocking legislation. The European Community in particular opposed the US’s effects doctrine, especially due to a similar struggle within the EU, but the latter decided not to extend their jurisdiction to non-EU areas, but if that hasn’t happened indirectly through several measures is questionable.
The concept of territory in international law
International law is based on the concept of the state. The state in its turn lies upon the foundation of sovereignty, which expresses internally the supremacy of the state as a legal person. Sovereignty is founded upon the fact of territory, the most basic characteristic of a state. The principles of respect for territorial integrity of states and the prohibition of interference in the internal affairs are basic norms in the international system. Changes in ownership of a particular territory is bound to many rules as it also involves a transfer in sovereignty, which alongside many other consequences means that the nationality of inhabitants is altered.
Territorial sovereignty
International rules regarding territorial sovereignty descend from Roman rules dealing with property. The term refers to the existence of those facts required under international law to entail legal consequences of a change in the juridical status of a particular territory. Burkina Faso/Mali-case: International Court rules that ‘title’ to territory comprehends both any evidence which may establish the existence of a right and the actual source of that right. Different types of territorial disputes are over the status of a country itself (Arab claims v. Israel) or over a certain area on the borders of two or more states (Somali claims v. south-east Ethiopia). Claims may be based on different grounds. Terra nullius is territory over which there is no sovereign. Res communis is territory not capable of being reduced to sovereign control, like the high seas.
New states and title to territory
Under classical international law, there is no legal person in existence competent to hold title until a new state is created. It leads to dilemma of new states and title to territory, especially in period of decolonization. The doctrine of domestic jurisdiction is the legal prohibition on interference within the internal mechanisms of an entity and emphasizes the supremacy of a state within its own frontiers. There are two methods by which a new entity may gain its independence as a new state: by constitutional means (like agreements between states or by an internal piece of legislation by the former sovereign) or by non-constitutional means (like use of force). Often a combination of the two is used. New entities can also seize independence by secession or revolution. The principle of self-determination is important when a state meets the international requirements of statehood, but not the requirements of international law (like a settled population, definable area of land and the capacity to enter into legal relations). If the entity is not recognized by international law it cannot legally obtain territory. No legal solution to this dilemma has been found.
The acquisition of additional territory
Five modes of acquisition are usually detailed: occupation of terra nullius, prescription, cession, accretion and subjugation (or conquest). These are divided in modes:
Additional territory is lost or acquired of uncertain boundaries are clarified by treaties between the states concerned. These treaties establish territorial regime erga omnes (not binding for everyone but will continue even when treaty doesn’t apply). Many boundary disputes revolve around treaty interpretation. Treaties should be interpreted in the light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 1969. Aim is to find common will of parties. A boundary award is made by the International Court or arbitral tribunal, allocating title to a particular territory or determining the boundary line.
Accretion is the geographical process by which new land is formed and becomes attached to existing land. When formed within the territory of a state, it belongs to that state.
Cession is the peaceful transfer of territory from one sovereign to another. The acquiring state has the same rights over the land as its predecessor had. When a third state has certain rights in a territory, the new sovereign must respect them. Cession happens with reciprocal intention to transfer sovereignty.
Conquest is the act of defeating an opponent and occupying all or part of its territory. It’s not a basis of title to the land; sovereignty still lies with ousted sovereign. Kelogg-Briand Pact 1928: War is outlawed as instrument of national policy (Art. 2(4) UN Charter). Force is legitimate in case of self-defense (art 51 UN Charter). Only way to gain control over conquested territory, if there is effective control over the area and if the former sovereign cannot reclaim the land (Nuremberg War Crimes Tribunal post WWII). Acquisition of territory by use of force is illegal as stated in art 2(4) UN Charter en resolution 242 SC.
- The exercise of effective control
Occupation is acquiring terra nullius by a state, connection made by International Court of Justice in Western Sahara-case concerning former colonies. Prescription is unlawfully acquiring land (not terra nullius), but which is legitimized when it has been in the possession of a state for a long time and transferring it back would lead to international instability (Botswana/Namibia-case).
Chamizal-arbitration, USA v. Mexico, river forming boundary changed course, US claimed new territory, Mexico protested so not a case of prescription, it has to be a peaceful process. Minquiers and Ecrehos-case, where islands were claimed by both UK and France, shows that the International Court of Justice considers the balance of competing state activities important when ruling in territorial disputes.
- Intertemporal Law
When changes in international law over time result in difficulties concerning title to territory, the claim needs to be examined according to the conditions and rules in existence at the time it was made, not at a later date (Island of Palmas-case).
- Critical date
Doctrine of uti possidetis, a new state has the boundaries of its predecessor entity, the moment of independence is most of the time the critical date.
- Sovereign activities (effectivités)
Effective control often measured by the amount of control compared to another sovereign. Eritrea/Yemen-case: there must be some absolute minimum requirement for the acquisition of territorial sovereignty. Effective control can be just symbolic, like in Eastern Greenland-case, Denmark had colonies in other parts of Denmark, which outweighed Norway’s few expeditions to Eastern Greenland. Intention by the state performing the activities is also important.
- The role of subsequent conduct: recognition, acquiescence and estoppel
Relevance of subsequent conduct: interpretation of intentions of states, as a method of resolving an uncertain situation or as a method of modifying pre-existing arrangements. Ethiopia/Eritrea-case: subsequent conduct may lead to the variation in application of treaties. Recognition is a state accepting a particular situation even if that situation is inconsistent with terms in a treaty. Acquiescence occurs in situation when protest is called for but by failing to protest, the state is understood to have accepted the new situation. Estoppel is when a state relies on the expectations raised by the activities of another state, the first state can’t change position because that would lead to the detriment of the other state, shown in the Temple of Preah Vihear-case, which concerns a border dispute between Cambodia and Thailand. Thailand had tacitly accepted French dominance in the area, and therefore couldn’t make claims on it later.
Territorial integrity, self-determination and sundry claims
The principle of territorial integrity aims at international stability and is by several laws, like Art. 2(7) UN Charter, prohibiting interference with domestic jurisdiction of states. It can conflict with the principle of the self-determination of peoples. Reference re Secession of Quebec-case: right to self-determination can also be exercised by peoples within a sovereign state, consistently with the maintenance of the territorial integrity of the state. Unilateral secession is almost exclusively accepted in cases of colonization.
- The doctrine of uti possidetis
Uti possidetis is an originally Latin American idea, where the countries maintained the same borders after independence was achieved. That excludes gaps in sovereignty. Burkina Faso v. Republic of Mali-case: uti possidetis has become customary international law and is unaffected by the emergence of peoples’ right to self-determination.
- Beyond uti possidetis
Uti possidetis can be disposed by treaties or principles like effective control, as showed in the Burkina Faso v. Republic of Mali-case. There, the Court ruled that sovereign activities around colonization have to be taken into account when determining the uti possidetis pre-independence line.
- International boundary rivers
When there is a navigable channel, the boundary will follow the middle line of that channel (the thalweg-principle). If it is a river which changes course, the boundary lies in the middle as well but when it shifts, the boundary lines continue as median lines.
‘The common heritage of mankind’
Laws protecting the common heritage are the UN Declaration of Principles Governing the Seabed and the Ocean Floor (1970), the 1982 Convention of the Law of the Sea and the 1979 Moon Treaty. The difference with res communis is that the latter permits freedom of access, while access to the common heritage is strictly regulated.
The polar regions
Many states make claims to the Arctic region, due to strategic importance and mineral resources, also on the moving packs of ice. These packs are generally still considered ‘high sea’. Antarctica is protected by the Antarctic Treaty of 1959, which also demilitarized the region. Mineral resources were accessible but are no longer due to environmental protection.
Leases and servitudes
Leases of land are a temporary transfer of sovereignty. Servitude exists where the territory of one state is under a particular restriction in the interests of the territory of another state, which may be used for the benefit of the international community of a large number of states. Leases and servitudes are also known as rights in rem.
The law of outer space
In WWI, the aerial warfare demonstrated in that war made regulations for the air necessary. In the 1919 Paris Convention for the Regulation of Aerial Navigation, states were given full sovereignty of the airspace above their land and territorial seas, confirmed by the International Court in the Nicaragua-case and the Benin/Niger-case. Space exploration complicates sovereignty of territorial airspace, how high it stops is unclear but between 50 and 100 miles. States have agreed to consider outer space as res communis, no state can claim sovereignty. Treaties forbid nuclear weapons and weapons of mass destruction from outer space but encourage scientific explorations without limits. An international regime that rules the use of the moon will be established when exploitation becomes feasible, for now it can be explored, not exploited. Private ownership of the moon is never admissible under the prevailing Treaty.
The historical functions of the sea are that of a medium of communication and that of a reservoir of resources. Grotius (Hugo de Groot) developed the doctrine of the open seas, whereby the oceans are res communis and are therefore accessible to all but incapable of appropriation, also known as the freedom of the high seas. In the 1982 Convention on the Law of the Sea, most rules regarding coastal states’ sovereignty over the sea were developed. The law of the sea is largely based on customary law, which makes application of treaties obligated only for those states that signed them.
The territorial sea
Internal waters, like lakes and rivers, are part of the land territory of the coastal state. Foreign ships fall under its jurisdiction, except when crimes occur on board, then both the flag state and the coastal state laws prevail (R v. Anderson and Wildenhus’), except in case of warfare.
The width of the territorial sea starts at the low-water mark around the coasts of the state. When the coast is indented of if there are islands along the coastline, one straight baseline is drawn in which the general direction of the coast was followed, under certain conditions which should be interpreted restrictively, like that the islands must lay in the immediate vicinity of the coastline (Qatar v. Bahrain).
The issue of bays is settled in Art. 7 of the 1958 Convention on the Territorial Sea, which states that a closing line may be drawn if the bay is up to 24 miles deep. It may then be considered an internal water. Islands are, as defined in the 1958 Convention on the Territorial Sea, ‘a naturally-formed area of land, surrounded by water, which is above water at high tide’. Rocks which cannot sustain human habitation or economic life of their own are not entitled to continental shelf or exclusive economic zone. Archipelagic states are states comprising of a number of islands, like Indonesia. Problems arise when those states draw straight baselines around the outer limits of their islands. Art. 47 of the 1982 Law of the Sea Convention states that archipelagic state is allowed to do this, which caused problems with what defines as a archipelagic state. Archipelagic waters fall under the sovereignty of the state, but ships of all states have the right of innocent passage. Historically, the territorial sea may extend 3 miles from the baseline, historically. In the 1982 Convention this has increased to 12 miles.
The right of innocent passage of foreign merchant ships through the territorial sea of a coast is accepted as customary international law. Art. 14 of the 1958 Convention on the Territorial Sea states that a coastal states may not impose charges for passage and must publicize any dangers to navigation in the territorial sea. Passage is not innocent when it involves fishing ships that fish in forbidden areas, of ships ‘prejudicial to the peace, good order or security of the coastal state, according to Art. 14(4) of the 1958 Convention on the Territorial Sea. The 1982 Convention added other examples of prejudicial passage, like spying and polluting. Passing ships must comply with the laws and regulations enacted by the coastal state, as agreed in the 1958 Convention. The 1982 Convention further developed this idea in Art. 21(1). Warships can have innocent passage, as long as they don’t engage in activities laid down in Art. 19(2) of the 1982 Convention.
International straits
Art. 16(4) of the 1958 Convention states that there shall be no suspension of innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state. This goes for warships as well (Corfu Channel-case). The 1982 Convention added that the same goes for straits between exclusive economic zones. States bordering the straits are not to suspend the passage, with a few exceptions. Art. 36, where a route exists through the strait through the high seas or economic zone of similar navigational convenience. Art. 38(1), if a strait is formed by an island of a state bordering the state and its mainland, where there exists seaward of the island a route through the high seas or economic zone of similar navigational convenience. Art. 45, straits connect an area of the high seas or economic zone with the territorial sea of a third state. Many straits are subject to special regimes, which are unaffected by provisions.
The contiguous zone
States sometimes claim to exercise certain rights over particular zones of the high seas. These rights are allocated restrictively for reasons like preventing infringement of customs. These zones are contiguous to the territorial sea and were limited to 12 miles from the baseline. In 1982, this was extended to 24 miles and it was made part of the exclusive economic zone.
The exclusive economic zone
These 200-mile zones were developed mostly to divide the fishing zones between coastal states. The exclusive economic zone and its provision are described in Art. 55 – 60 of the 1982 Convention, and has become customary international law over the last 20 years, as demonstrated in the Libya/Malta Continental Shelf-case.
The continental shelf
The term ‘continental shelf’ refers to the ledges that project from the continental landmass into the sea sand which are covered with only a relatively shallow layer of water and which eventually fall away into the ocean depths. It is defined in Art. 76(1) of the 1982 Convention as linked to the exclusive economic zone-area. It does however take into consideration that the shelf can extend beyond 200 miles, in that case the zone can be enlarged to 350 miles, but the state must pay for these rights to the International Seabed Authority. The continental shelves are rich in oil and gas resources and in fish. The exploitation of these areas is now recognized as exclusive to the coastal state, a trend which started with the 1945 Truman Proclamation, which introduced the need to claim jurisdiction over the shelves, and pointed to the coastal state as the natural sovereign.
Maritime delimitation
Delimitations require agreement when other states are involved, which have been reached nowadays through customary law or treaties. The appropriate method to determine delimitation of territorial sea, continental shelf or exclusive economic zones is to draw a provisional equidistance line at the starting position and then see whether any relevant or special circumstances exist which may warrant a change in that line in order to achieve an equitable result. The following principles may be noted. First, the delimitation should avoid the intrusion of one party on the natural prolongation of the other. Secondly, in the drawing of the equidistance line, it must be taken into consideration that coasts can be very concave or convex, but this must be very significant to be taken into account. Thirdly, a substantial difference in length of the coastline of the parties may be taken into consideration. Fourthly, the presence of island may modify the line. Fifthly, security reasons are important as well. Finally, the prior conduct of parties is taken into account.
Landlocked states
Art. 125 of the 1982 Convention states that landlocked states, states without a coastline, do enjoy the freedom of transit but that transit depends on agreements made between landlocked states and transit states. Art. 131 provides ships of landlocked states the same right of innocent passage and freedom of navigation in the waters beyond the territorial sea.
The high seas
In Art. 1 of the 1958 Convention, the high seas is defined as all parts of the sea that were not included in the territorial sea or in the internal waters of the state. The 1982 Convention adds parts that are not included in the exclusive economic zone or the archipelagic waters of an archipelagic state.
Art. 87 of the 1982 Convention provides that the high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid down in the Convention and other rules of international law, a freedom which applies to coastal as well as to landlocked states.
Jurisdiction on the high seas concerning the maintenance of order rests upon the nationality of the ship, the flag state. Art. 91 of the 1982 Convention also stipulates that there should be a ‘genuine link’ between the ship and the flag state. Ships can only sail under the flag of one state, and the flag state alone may exercise rights over the ship, as was elaborated in the Lotus-case, ‘vessels on the high sea are subject to no authority except that of the state whose flag they fly’.
The basic principle of exclusive jurisdiction is subject to some exceptions. For instance the right of visit, or the right of approach, is the right vessels have to approach other vessels to determine their nationality, of to stop unauthorized broadcasting. According to Art. 109 of the 1982 Convention, states must cooperate to stop unauthorized broadcasting from the high seas. Another exception is in case of piracy. Piracy is defined in Art. 101 of the 1982 Convention to consists of acts like illegal acts of violence. Hijacking only fall under piracy when it serves private goals, so political hijackings are not acts of piracy. Any and every state may seize a pirate ship or aircraft and that state has jurisdiction to impose penalties. A third exception is the slave trade. Art. 99 of the 1982 Convention notes that every state must take effective measures to prevent slave trade taking place on ships flying its flag. Hot pursuit is another exception. The right of hot pursuit of a foreign ship applies when a foreign ship has infringed the rules of a coastal state, it cannot flee to the high seas to escape punishment.
Treaties and agreements can alter the principle of exclusive jurisdiction as well, in particular concerning the proliferation of Weapons of Mass Destruction (WMD’s). In Security Council resolution 1540(2004), all states are required to prohibit and criminalize the transfer of WMD’s. A last exception is the prevention of pollution of the seas by the discharge of oil or dumping of radioactive waste, as stated in Art. 24 of the 1958 Convention, and later in Art. 194 of the 1982 Convention.
The international seabed
The international seabed contains an enormous amount of natural resources. To manage the distribution of these resources, the 1982 Law of the Sea Convention deemed it ‘common heritage of mankind’, over which no sovereign or other rights may be recognized. The International Seabed Authority was created to supervise and distribute the rights to exploit parts of the Area. Pioneer investor-states were assigned to invest in research and were allowed to exploit parts of it.
Many states were not satisfied with this agreement and started created their own legislation pending an acceptable international solution. In 1994 the Agreement on Implementation of the Seabed Provision of the Convention on the Law of the Sea was signed by many states, establishing the International Seabed Authority as the autonomous organization to organize and control activities in the Area, and the provisions made in the 1994 Agreement were beneficial to many states, especially to the developed ones. The International Seabed Authority became fully operational in 1996, and its supreme organ is the Assembly, in which all states party to the Convention are represented.
Settlement of disputes
Part XV, section 1 of the 1982 Convention lays down the general provision in the settlement of law of the sea disputes. Art. 279 expresses the obligation to settle disputes peacefully and in accordance with Art. 2(3) of the UN Charter. When no peaceful compromise can be reached, the procedures laid down in section 2 are applied, which names the following institutions for dispute settlement: The International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal under Annex VII or a special arbitral tribunal under Annex VIII for specific disputes. There are exceptions to the obligation of turning to these institutes in the case of the parties not being able to sort it out among themselves, these are firstly, when a dispute concerns the exercise by a coastal state of its sovereign rights and jurisdiction in its exclusive economic zone. Secondly, when a dispute concerns marine scientific research, the coastal state is not obliged to accept the submission to compulsory settlement when it involves the state performing research in their own economic zone or on its continental shelf. Thirdly, the same goes for disputes with regard to fisheries.
Problems have arisen when disputes fall under one or more conventions. The International Tribunal for the Law of the Sea then decides which procedure should be followed.
The Tribunal, based in Hamburg, is composed of twenty-one independent members, all of high reputation and representing the principle legal systems and geographic regions. Judges are elected for nine years by the states party to the Convention. The jurisdiction of the Tribunal compromises all disputes and applications submitted to it in accordance with the Convention and all matters specifically provided for in any other agreement which confers jurisdiction to the Tribunal. To hear disputes regarding activities in the international seabed area, a Seabed Disputes Chamber of the Tribunal has been formed, which also has the opportunity to give advisory opinions to for instance the Assembly, when requested.
Immunity from jurisdiction is, like jurisdiction itself, based on the requirement under international law to respect territorial integrity and political independence of other states. Immunity constitutes a derogation from the host state’s jurisdiction.
Sovereign immunity
In The Schooner Exchange v. McFaddon, the US Supreme Court limited the jurisdiction of a state within its own territory, by making an exception for foreign sovereigns. Sovereign immunity is closely related to two other legal doctrines, non-justiciability and act of state. In the case of sovereign immunity, these concepts fall under international law as it is simply beyond the competence of the domestic tribunal. However, immunity from jurisdiction does not mean exemption from the legal system of the territorial state in question. This dispute has several approaches.
The absolute immunity approach is the dominant opinion in the eighteenth and nineteenth century. Especially the United Kingdom was a leading practitioner. The sovereign is completely immune from foreign jurisdiction in all cases regardless of the circumstances. As protests emerged and a nuance in the policy was created, restrictive immunity. This means that immunity was available as regards governmental activity, but not when a state was engaging in commercial activity. This approach becomes more and more popular, but the UK still held on to the absolute immunity approach. In the Philippine Admiral-case, 1976, a Philippine owned vessel had writs issued against it in Hong Kong, by two shipping corporations. The Privy Council decided not to follow earlier verdicts, using the restrictive approach. Lord Cross gave four reasons for this decision. First, he did not feel bound to earlier decisions. Secondly, that the House of Lords had been divided on similar questions. Thirdly, the trend of opinion had turned against the absolute immunity doctrine and finally, because the Western dismissal of the absolute immunity doctrine had lead to states being sued, and Cross did not see why matters would be different in the East.
With the acceptance of the restrictive theory, it becomes crucial to analyze the distinction between those acts that will benefit from immunity and those that will not. The basic approach of recent legislation has been to proclaim a rule of immunity and then list the exceptions. It also becomes important to distinguish sovereign (jure imperii) and non-sovereign (jure gestionis) acts. To determine this, the nature of the transaction is considered, rather than its purpose. A two-stage approach has been developed by the ILC Commentary. First, reference should be made primarily to the nature of the contract or transaction and if it is established that it is non-commercial or governmental in nature, no further enquiry would be needed. If, however, the contract or transaction appeared to be commercial, then reference to its purpose should be made in order to determine whether the contract or transaction was truly sovereign or not.
The strained relation between international human rights and domestic systems has not affected the application of sovereign immunity in civil suits against foreign states for violations of human rights law. Starting with the US Foreign Sovereign Immunities Act, 1996, legislation has been developed to make exceptions for states facilitating terrorism. The European Court of Human Rights has also confirmed the respect for sovereign immunity in their verdicts, as to comply with international law. However, when criminal proceedings are involved, the situation changes and immunity can be withheld, as was the case in the extradition of General Pinochet, who was accused of charges of torture which had occurred in other states.
Commercial transaction is the primary example of state activities for which immunity is no longer to be obtained. It is defined in Art. 3(3) of the State Immunity Act 1978, as any contract for the supply of goods or services, any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transactions or of any other financial obligation, or any other transaction or activity into which a state enters or in which it engages otherwise than in the exercise of sovereign authority. Other areas in which a state is not immune are in contracts of employment, though states differ in domestic legislation on this issue, in cases of tortuous activity.
Diplomatic law
Diplomacy as a method of communication between various parties is an ancient instrument, and the diplomatic staff benefits from the legal principle of state sovereignty. In The Vienna Convention on Diplomatic Relations, 1961, emphasizes the functional necessity of diplomatic privileges and immunities for the efficient conduct of international relations, as well as the character of the diplomatic mission as representing the state. States are not legally compelled to enter into diplomatic relations, and the receiving state can declare any member of a diplomatic mission persona non grata, without having to explain their decision and thus obtain the removal of that person. Legislature concerning diplomatic mission is laid down in the 1961 Convention.
Art. 22 of the Convention declares the inviolability of the premises of the mission and the need for consent of the mission for agents of the receiving state to enter. This is an absolute rule. Whether a right of diplomatic asylum exists within general international law is doubtful and in principle refugees are to be returned to the authorities of the receiving state in the absence of treaty or customary rules to the contrary.
Art.27 provides that the receiving state shall permit and protect free communication on behalf of the mission for all its official purposes, in the form of a ‘diplomatic bag’. That bag shall not be opened or detained and must bear visible external marks of its character. The trade-off between Art. 27 and the risk of abuse of the rule is under discussion, even by the ILC.
Under Art. 29 of the Vienna Convention, the person of a diplomatic agent is inviolable and may not be detained or arrested. The inviolability goes for his private residence, papers, correspondence and property as well. Diplomats enjoy complete immunity from the legal system of the receiving state, as well as from the civil and administrative jurisdiction of the state in which they are serving. The latter has three exceptions. First, where the actions are related to private immovable property situated within the host state, unless held for mission purposes. Secondly, in litigation relating to succession matters in which the diplomat is involved as a private person, and finally, with respect to unofficial or commercial activity engaged in by the agent.
The immunities of international organizations are not clear, it is an issue usually dealt with in treaties. The most important one is the General Convention on the Privileges and Immunities of the United Nations of 1946, which sets out the immunities of the United Nations and its personnel and emphasizes the inviolability of its premises, archives and documents.
State responsibility is a fundamental principle of international law, arising out of the nature of the international legal system and the doctrines of state sovereignty and equality of states. It provides that whenever one state commits an internationally unlawful act against another state, international responsibility is established between the two. A breach of an international obligation gives rise to a requirement of reparation. The relationship between state responsibility and other branches of international law, like treaties, is a strained one.
The nature of state responsibility
The essential characteristics of state responsibility hinge upon certain basic factors. First, the existence of an international legal obligation in force between two particular states. Secondly, that an act or omission has occurred which violates that obligation and which is imputable to the state responsible. Finally, that loss or damage has resulted from the unlawful act or omission. Art. 1 of the International Law Commission’s Articles on State Responsibility states the general rule that every internationally wrongful act of a state entails responsibility. Art. 2 provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and constitutes a breach of an international obligation of the state. It is international law that determines what constitutes an internationally unlawful act, not municipal law. State responsibility may co-exist with individual responsibility; the two are not mutually exclusive.
There are contending theories as to whether responsibility of the state for unlawful acts or omissions is strict or whether it is necessary to show some fault or intention on the part of the officials concerned. The principle of objective responsibility (‘risk’ theory) maintains that the liability of a state is strict, once an unlawful act has taken place, which has caused injury and which has been committed by an agent of the state, the state will be responsible in international law, irrespective of good or bad faith. Contrasting is the ‘fault’ theory, or the subjective responsibility concept. This approach emphasizes that an element of intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused.
Imposing upon a state absolute liability wherever an official is involved encourages that state to exercise greater control over its various departments and representatives. It also stimulates moves towards complying with objective standards of conduct in international relations. The state is responsible for the acts of its servants that are imputable or attributable for it. Imputability is the legal fiction which assimilates the actions or omissions of state officials to the state itself and which renders the state liable for the damage resulting to the property or person of an alien.
An unlawful act may be imputed to the state even where it was beyond the legal capacity of the official involved, providing that the officials ‘have acted at least to all appearances as competent officials or organs or they must have used powers or methods appropriate to their official capacity’ (Caire-case). This is known as the ultra vires acts. Art. 8 of the ILC Articles states provides that the conduct of a person or group of persons shall be considered as an act of state under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct. The latter part of this phrase has proved to be controversial. The Commentary to the article emphasizes that ‘such conduct will be attributable to the state only if it directed or controlled the specific operation and the conduct complained of was an integral part of the operation’. When an incident involves rioters or rebels causing loss or damage, the general principle of non-liability is applied when the state shows due diligence.
Where a state consents to an act by another state which would otherwise constitute an unlawful act, wrongfulness is precluded provided that the act is within limits of the consent given, like when troops from one state are sent to another at the request of the latter. Wrongfulness is also precluded where the act constitutes a lawful measure of self-defense taken in conformity with the UN Charter. Art. 22 o0f the ILC Articles also provides that the wrongfulness of an act is precluded if and to the extent that the act constitutes a countermeasure. Lawful countermeasures must be in response to a prior wrongful act and taken in the light of a refusal to remedy it, directed against the state committing the wrongful act and proportionate. There is no requirement that the countermeasures taken should be with regard to the same obligation breached by the state acting wrongfully. Thus, the response to a breach of one treaty may be action taken with regard to another treaty, provided that the requirements of necessity and proportionality are respected. Art. 49-52 of the ILC Articles provide more examples of countermeasures.
Force majeure is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, act of nature (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract. It has long been accepted as precluding wrongfulness, although the standard of proof is high.
Art. 42 of the ILC Articles stipulates that a state is entitled as an injured state to invoke the responsibility of another state if the obligation breached is owed to that state individually or to a group of states, including the state or the international community as a whole, and the breach of the obligation specially affects that state or is of such character as radically to change position of all the other states to which the obligation is owed with respect to the further performance of the obligation.
Responsibility may not be invoked if the injured state has validly waived the claim or is to be considered as having, by reasons of its conduct, validly acquiesced in the lapse of the claim. If several states are injured by the same wrongful act, each state may separately invoke responsibility, and where several states are responsible, the responsibility of each may be invoked.
There are several consequences of internationally wrongful acts, the most important ones being cessation and reparation. Cessation means the immediate ceasing of the internationally wrongful act. If required, the wrongful state should offer appropriate assurances and guarantees of non-repetition. The basic principle of repetition, or the remedying of a breach of an international obligation for which the state concerned is responsible, was laid down in the Chorzów Factory-case. It states that ‘reparation must wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed of that act had not been committed’. This obligation is also provided in Art. 31-35 of the Articles on State Responsibility. Compensation is usually assessed on the basis of the ‘fair market value’ of the lost property, but the method varies, and damage includes both material and non-material (or moral) damage.
The relation between state responsibility in international crimes is much discussed. Art. 19 of the ILC Draft Articles 1996 distinguishes international crimes and international delicts within the context of internationally wrongful acts. Examples of international crimes are aggression, slavery, apartheid and massive pollution. The question whether states can be held criminally responsible has been highly controversial, but many argue that since 1945 the attitude towards certain crimes by states has altered so as to bring them within the realm of international law. Three changes have contributed to this trend: first, the development of jus cogens as a set of principles from which no derogation is permitted; secondly, the rise of individual criminal responsibility directly under international law; and thirdly, the UN Charter and its provisions for enforcement action against a state in the event of threats to or breaches of the peace or acts of aggression.
The doctrine of state responsibility with regard to injuries to nationals rests upon two ideas, the attribution to one state of the unlawful acts and omissions of its officials and its organs, and the capacity of the other state to adopt the claim of the injured party. Nationality is the link between the individual and his or her state, giving it particular benefits and obligations. It is also the vital link between the individual and the benefits of international law. The principle of diplomatic protection entails the protection a state gives to its nationals abroad, states have no obligation in this area but nationals can request is, and the government has the duty to seriously consider the request. The exercise of diplomatic protection is not considered to be intervention of the state concerned, according to international law.
A state can extend its nationality to whomsoever it wishes to, as long as it does not affect other states. As established in the Nottebohm-case, the International Court of Justice, which a national can only appeal to diplomatic protection of his home state, when there is a genuine link between the individual and the state. Furthermore, the nationality must exist at the date of the injury and should continue at least until the date of the formal presentation of the claim.
Customary international law, and also Art. 14 of the ILC Draft Articles on Diplomatic Protection, provide that before international proceedings are instituted or claims or representations made, the remedies provided by the local state should have been exhausted. This rule enables states to have an opportunity to redress the wrong that has occurred within its own legal order and to reduce the number of international claims that might be brought.
The treatment of aliens
The diplomatic protections of nationals abroad developed as the number of nationals overseas grew as a consequence of increasing trading activities and thus the relevant state practice multiplied. There are two standards for the treatment of aliens: the international minimum standards, which come down to the existence of an international standard that must be upheld irrespective of how the state treats its own nationals. The other standard is the national treatment standards, which claims that all states need to do it treat the alien as it does its own nationals. The second standard is more popular in non-Western region, who view the international minimum standard as Western interference in domestic affairs. The Calvo doctrine was formulated to form a shield against external meddling. This involved a reaffirmation of the principle of non-intervention coupled with the assertion that aliens were entitled only to such rights as were accorded nationals and thus had to seek redress for grievances exclusively in the domestic area. In 1956, Garcia-Amador tried to resolve the divide between the international and the national standard by presenting a report on international responsibility to the ILC. He formulated two principles: first, that aliens had to enjoy the same rights and guarantees as enjoyed by nationals, which should not in any case be less than the fundamental human rights recognized and defined by the international community; secondly, international responsibility would only be engaged if internationally recognized fundamental human rights were affected. The ILC did not approve of this approach but it illustrates the increasing importance of human rights law.
The expropriation of foreign property
Under international law, expropriation of alien property is legitimate when certain conditions are fulfilled. First, the concept ‘property’ needs to be defined. This was done in the 1961 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens as ‘all movable and immovable property whether, tangible or intangible, including industrial, literary and artistic property as well as rights and interests in property. Expropriation of it means the taking of property, but actions short of direct possession of the assets in question may also fall in the category. The Permanent Court has noted that expropriation must be for ‘reasons of public utility, judicial liquidation and similar measures’. How far this extends is open to dispute, although it will cover wartime measures. A requirement for the expropriation is often prompt, adequate and effective compensation. Often, bilateral investment treaties are signed, which should be obeyed (pacta sunt servanda). The number and uniformity of these agreements has lead to the development of a form of customary international law concerning these treaties. First, the concept of an investment is invariably broadly defined. Secondly, both parties undertake to encourage and create favorable conditions for investment. Thirdly, investments by the contracting parties are not to be treated less favorably than those of other states. Many disputes over expropriation of foreign property have been resolved directly by the states concerned on the basis of lump-sum agreements.
International law is limited in its mechanisms for the creation of new rules. Custom relies upon a measure of state practice supported by opinio juris and is usually an evolving and timely process. Treaties are a more direct and formal method of international law creation. A treaty is basically an agreement between parties of the international scene. They may be concluded or made by states and international organizations, but are primarily concerned with relations between states. In 1969, the Vienna International Convention on the Law of Treaties was signed, and it came into force in 1980. This Convention mainly reflects customary international law and it constitutes the basic framework for any discussion of the nature and characteristics of treaties. In 1986, a Convention on Treaties between States and International Organizations was signed. The fundamental principle of treaty law is the proposition that treaties are binding upon the parties to them and must be performed in good faith. This is the pacta sunt servanda-rule, the oldest principle of international law, reaffirmed in Art. 26 of the 1969 Convention. Art. 2 of the Convention defines a treaty as ‘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 destination’. The Convention excludes agreements with international organizations, as well as agreements between states governed by municipal law. There are no specific requirements to the form of a treaty, but when it is not binding, it is labeled an informal international instrument.
The making of treaties
There is no prescribed form or procedure for making treaties. How it is formulated and by whom it is signed, depends on the intentions and the agreements of the states concerned. Domestic law determines who is being given treaty-making power, for instance the Crown in the UK and the President in the US. Any act relating to the making of a treaty by a person who is not authorizes as required, will result in it having no legal effect whatsoever.
Once a treaty has been drafted and agreed by authorized representatives, a number of states are necessary before it becomes a binding legal obligation upon the parties involved. Art. 9 of the Convention provides that adoption in international conferences takes place by two-thirds of the states present and voting, unless the same majority decided to use a different rule. There are a number of ways in which a state can express its consent to a treaty. This can be done by signature, by exchange of instruments, by ratification and by accession. Exchange of instruments means that states can be bound to a treaty concerning these instruments, by participating in the exchange. Ratification is when the sovereign signs the treaty on behalf of the state. Consent by accession is the method by which a state becomes a party to a treaty it has not signed, either because the treaty provides that a signature is limited to certain states, or because a particular deadline has passed.
Reservations to treaties
A reservation is defined in Art. 2 of the Convention as ‘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 the application to that state’. The capacity of a state to make reservations to an international treaty, illustrates the principle of sovereignty of states whereby a state may refuse its consent to particular provisions so that they do not become binding. These actions do risk the treaty becoming ineffective. Reservations cannot be made in bilateral treaties.
Entry into force of treaties
Basically, treaties will become operative when and how the negotiating states decide, but in the absence of any provision or agreement regarding this, a treaty will enter into force as soon as consent to be bound by the treaty has been established for all negotiating states. In many treaties the provision as to when it enters into force is specified in the treaty itself. After this date, the treaty should be transmitted to the UN Secretariat for registration and publication. This is to prevent the occurrence of secret treaties, a big issue in the outbreak of First World War.
The application of treaties
Treaties do no operate retroactively, its provisions are not binding to events that occurred before the state’s acceptance of the treaty. The general rule is that a treaty is binding upon each party in respect of its entire territory. International agreements make it possible for a state to apply a treaty to only part of its territory, which were used frequently by the colonial powers.
Third states are in general not bound to treaties, as they are binding only upon the states that are party to it. The International Law Commission emphasized in their advice to the Vienna Convention of 1969 that treaties cannot be binding upon third states. The only exception to this rule is in the case of customary international law.
The amendment and modification of treaties
The processes of amendment and modification of treaties both constitute the revision of a treaty, but they definitely are separate activities. Amendments refer to the formal alteration of treaty provisions, affecting all the parties to the particular agreement.
Modification refer to variations of certain treaty terms as between particular parties only. Problems can occur where there are no specifications in the treaty concerning amendment processes, and some of the parties oppose amendments proposed by others. In this case, Art. 40 of the Vienna Convention provides general rules. Modification is possible when it has not been prohibited by the treaty in question and when it does not affect the rights or obligations of others. It is not allowed when the provision it intends to alter is one derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. A treaty may also be modified by the terms of another, later, agreement (see Art. 30 of the Convention), or by the establishment of a rule of jus cogens.
Treaty interpretation
In international law, there are three basic approaches to treaty interpretation. The first one centers on the actual text of the agreement and emphasized the importance of the words used, the objective approach. The second looks to the intention of the parties adopting the agreement, the subjective approach. The third one adopts a wider perspective than the other two and emphasizes the object and purpose of a treaty, the teleological approach. The question of interpretation is dealt with in Art. 31-33 of the Vienna Conventions. In case of treaties that also operate as the constitutional document of an international organization, a more flexible method of interpretation is used. In particular, this programmatic interpretation doctrine is applied to the UN. Human rights treaties are also interpreted in a dynamic way, using a more purpose-oriented method of interpretation.
Invalidity, termination and suspension of the operation of treaties
Art 42 of the Vienna Conventions states that the validity and continuance in force of a treaty may only be questioned on the basis of the provisions in the Vienna Convention. Art 44 provides that a state may only withdraw from or suspend the operation of a treaty in respect of the treaty as a whole and not particular parts of it, unless the treaty states otherwise or the parties otherwise agree.
In art 46(1), the Convention deals with the invalidity of treaties due to its signing being unlawful under municipal law. It states that a state may not invoke the fact that its consent to be bound to a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent, unless that violation was manifest and concerned a rule of its internal law of fundamental importance. The state may not invoke a provision of its internal law as a justification for its failure to carry out an international obligation.
Art 48 declares that a state may only invoke an error in a treaty as invalidating its consent to be bound to the treaty, if the error related to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound to the treaty. When the state knew or ought to have known of the error, it cannot invoke it. Fraudulent conduct of another negotiating state or coercion can result in the invalidation of a treaty. Where consent has been obtained by coercing the representative of a state, art 51 of the Convention states it can have no legal effect. When coercion is exercised against a state itself, art 2(4) of the UN Charter provides that the treaty should be regarded as invalid as well.
The termination of a treaty can be reached in a number of ways. It can happen by treaty provision or consent, or by a material breach. In that case, if one state violates an important provision in an agreement, it is not unnatural for the other states concerned to regard that agreement as ended by it. It is in fact a way of reprisal or countermeasure. Another way to terminate a treaty is by supervening impossibility of performance. When carrying out the terms of the agreement becomes impossible because of the ‘permanent disappearance or destruction of an object indispensable for the execution of the treaty’, a party may validly withdraw or terminate the treaty. When a fundamental change of circumstances occurs, a state may also terminate the treaty according to the doctrine of rebus sic stantibus. The application of this doctrine has to be approached in a very strict way. The Court has determined that such changes must ‘have increased the burden of the obligations to be executed to the extend of rendering the performance something essentially different from that originally undertaken’.
Treaties between states and international organizations
The ILC completed Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations in 1982, and the Vienna Convention on the Law of Treaties between States and International Organizations was adopted in 1986. It closely follows the original 1969 Vienna Convention. It is provided that when a treaty concerns binding member states, like the EU does, this has to be judged on a case-by-case basis.
State succession
When political entities change due to federations, mergers, dissolutions or secession, international law needs to incorporate such events into its general framework with the minimum amount of disruption and instability. The change in political sovereignty over a certain territory poses problems.
State succession in international law is different from state succession in municipal law. In international law, the principles of state sovereignty, equality of states and non-interference prevent a universal succession principle similar to domestic law from being adopted. In the case of state succession, a once-recognized entity disappears in whole or in part to be succeeded by sine other authority, thus precipitating problems of transmission of rights and obligations. It does not, however, infringe upon the normal rights and duties of the state under international law. It is not the same as succession of governments, especially revolutionary succession. Often, these problems are dealt with in treaties, for instance after a war, or bilateral agreements, like between a colonial power and a new state.
In state succession, international law has developed rules on a case-by-case basis, leaving them not very consistent. The 1978 Vienna Convention on Succession of States in Respect of Treaties, which entered into force in 1996, and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, not yet into force, do provide some guidelines. State succession may be defined as the replacement of one state by another in the responsibility for the international relations of territory. This does not cover everything and state succession functions as an umbrella term for a phenomenon occurring upon a factual change in sovereign authority over a particular territory. The particular circumstances differ to each situation.
Continuity and succession
In the case if succession, it needs to be determined whether it is a totally separate creature from its predecessor or whether it is a continuation in it in a slightly different form. It can also cover the situation of unification. One method of unification is by the creation of a totally new state, for example by the merger of two existing states into a new entity with a new name, like the Republic of Yemen. Another way to achieve unification is by the absorption of one state by another, like Germany during the Second World War.
Succession to treaties
The rules concerning succession to treaties are those of customary international law together with the 1978 Vienna Convention, which entered into force in 1996. From this Convention, it follows that the consent of the other parties to the treaty in question or an agreement with the predecessor state with regard to bilateral issues is required.
Treaties for succession purposes often relate to territorially grounded treaties, under which rights or obligations are imposed directly upon identifiable territorial units. The principle of uti possidetis, which claims that territory and other property remains with its possessor at the end of a conflict, unless provided for by treaty.
This principle is reinforced by Art. 62(2) of the Vienna Convention on the Law of Treaties and Art. 11 of the Vienna Convention on Succession of Treaties.
In the case of absorption, where one state is absorbed by another and no new state is created, the former state becomes extinct and its treaties die with it. Only territorial treaties defining the boundaries of the entity absorbed will continue. Treaties of the absorbing state do continue and will extend to the territory of the extinguished state. When two or more state unite and form one successor state, art 31(1) of the Vienna Convention on Succession of Treaties provides that treaties continue unless the successor state and the other state party or states parties otherwise agree or it appears that this would be incompatible with the object and purpose of the treaty or would radically change the condition of the operation. In the case of the German unification, there were mutually agreed provisions in the Unification Treaty on how to deal with international treaties of both the GDR and the FRG.
When part of the territory of one state becomes part of the territory of another state, the general rule is that the treaties of the former cease to apply to the territory while the treaties of the latter extend to the territory, as provided in art 15 of the Vienna Convention on Succession of States to Treaties.
Secession from an existing state to form a new state or states can occur in many different forms. They range from a break-up of a previously created entity into its previous constituent elements, like in the 1961 dissolution of the United Arab Republic into the pre-1958 states of Egypt and Syria, to a complete fragmentation of the state into a variety of successors, like in the demise of Austria-Hungary in 1919. When a state secedes, it should have the opportunity the start with a ‘clean slate’, and not be bound to treaties it did not sign itself. However, considering this could risk international instability, treaties should be maintained as much as possible. The Vienna Convention shares this approach, which was adopted on the basis of the International law Commission draft which had taken the position that ‘in modern international law having regard to the need for the maintenance of the system of multilateral treaties and of the stability of treaty relationships, as a general rule of de jure continuity should apply’.
‘Newly independent states’ is a term reserved mostly for decolonised areas. Art 16 of the Vienna Convention on Succession to Treaties laid down the general rule that such states were not bound to maintain in force or to become a party to any treaty by reason only of the fact that the treaty had been in force regarding the territory in question at the date of succession.
Newly independent states were allowed up to a certain level to start with a ‘clean slate’. Practice shows, however, that new states may benefit from a ‘fast track’ method of participating in treaties, a option provided in art 17 of the Vienna Convention.
When an existing state comes to an end as an international person and is replaced by two or more other states, it is accepted that political treaties will not continue but that territorially grounded treaties will continue to attach to the territories in question now subject to new sovereign arrangements.
It can be argued that international human rights treaties are analogous and thus ‘attach’ to the inhabitants concerned within the territory of the predecessor state and this continue to bind successor states. When the succession of states involves new entities not being bound to international human rights treaties, a dangerous situation arises, as was the case in former Yugoslavia. The UN Human Rights Committee took it upon itself to control the situation, but no exclusive laws have been developed in these cases. With the exception of course of customary international law, this binds every state.
Environmental problems have become of increasing international concern, as pollution generating from one country can have significant effects on other countries and as environmental problems cannot be solved by one state alone, but require international cooperation. The initial problem lies in the state-orientated origin of the discipline, the development of an international regime takes a long time. A clean environment has been classified as an international human right, and as a requirement for economic development. The significance of the environment in these two areas has led to the quick development of international environmental law.
State responsibility and the environment
The principle of state responsibility dictates that states are accountable for breaches of international law. Customary international law imposes several fundamental obligations upon the state in the area of environmental protection. The general judicial approach is, as declared by the Court, that ‘the existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.’ This marks the shift of focus from the state alone to an international community.
There is debate about what is the appropriate standard for the conduct of states in the field of environmental issues. Some advocate strict liability, which means that states are under absolute obligation to prevent pollution and are thus liable for its effects irrespective of fault. Cases show that international law has not accepted this general principle, and treaty practice varies in its approach. The test of due diligence is accepted as the most appropriate instrument, states need to exercise diligent control of sources of harm. Elements of remoteness and foreseeability also count in the question of state liability.
What must be considered is whether any damage must actually have been caused before international responsibility becomes relevant, and whether a there is a certain threshold of damage. Regarding environmental problems, it is hard to determine risks involved and compensation that might be due. The situation becomes more complicated when a private party is causing the environmental injury. In general, states are expected to authorize possibly polluting activities, and prevent them when the pollution would violate international law. When the state neglects to do so, it is responsible under international law.
International co-operation
A developing theme of international environmental law relates to the requirement for states to co-operate in dealing with transboundary pollution issues, a concept secured in the Stockhol Declaration of 1972 as well as in the Rio Declaration of 1992. It is also a recurrent item for the OECD, the Organization for Economic Co-operation and Development. One of the subjects developed in international law is the duty of prior consultation. Many treaties entail the obligation of states to inform other states of potential pollution, which is also noted in Art. 5 of the ILA Montreal Rules. Resulting from this is an increasing awareness of international pollution and increasing pressure to prevent the announced pollution.
In the 1992 Convention on Climate Change, the ‘precautionary principle’ is explained. It means that if an action or policy might cause severe or irreversible harm to the public or to the environment, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who want to take the action. This principle is gaining support as forming part of international environmental law. Another important principle is the ‘common but differentiated responsibilities’, declared in Principle 7 of the Rio Declaration. This means that developed countries should take the lead in addressing the environmental issues. A third relevant concept is sustainable development, noted in Principle 3 of the Rio Declaration as that the right to development must be fulfilled so as to ‘equitably meet developmental and environmental needs of present and future generations’. A final notion that is widely accepted in some regions and less in others, is that the costs of pollution should be paid by the polluter. However, it remains difficult to determine exact costs and the originator of the pollution.
Atmospheric pollution
The legal characterization of the atmosphere is hard to define. A possibility is to refer to it as a shared resource or area of common concern. The core obligation has been laid down in the Trail Smelter-case, which provided that no state had the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another state or to persons or property therein.
Ozone depletion and global warming
Art. 1(1) of the Vienna Convention for the Protection of the Ozone Layer, 1985, defines the ozone layer as ‘the layer of atmospheric ozone above the planetary boundary layer’. This convention is a framework agreement, providing the institutional structure for the elaboration of Protocols laying down specific standards concerning the production of CFC’s, contracting parties agree to take appropriate measures to protect human health en the environment.
This resulted in the 1992 UN Framework Convention on Climate Change, its objective being to achieve stabilization of greenhouse gases in the atmosphere. The Convention entered into force in 1994, and it was agreed that the pledges by the developed country parties to reduce emissions by 2000 to 1990 levels. Soon, it became clear that this was not possible. In 1997, the Kyoto Protocol was realized. It commits developed countries to individual, legally binding targets to limit or reduce their greenhouse gas emissions. Developing countries are obliged to meet existing, less challenging, commitments. States can receive credits for supporting projects in other developed states, so called joint implementation, or less developed states, so called clean development mechanisms.
Ultra-hazardous activities
The definition of what constitutes ultra-hazardous activities is uncertain, and the characteristics revolve specifically around the consequences of it rather than the likelihood of it occurring. The focus is on the significant or exceptional risk of severe transnational damage. The strict liability principle is in this case widely accepted, the state under whose territory or jurisdiction the activity took place is liable, irrespective of fault.
Nuclear activities are an ultra-hazardous activity, as was demonstrated in Chernobyl, 1986. The International Atomic Energy Agency (IAEA) was established in 1956 in order to encourage the development of nuclear power, but since 1986, its focus shifted to nuclear safety. One of the terms developed after 1986 is the provision of information. States are required to inform other countries when civil nuclear activities can have consequences for them. Also, reciprocal information systems were set up. Military information is not included in these agreements. Another provision is the provision of assistance. A state in need of assistance in the event of a nuclear accident or radiological emergency may call for such assistance from any other state directly or through the IAEA, regardless of whether it happened within its own territory or not.
International law has always considered the maintenance of peace as its fundamental purpose. There are two techniques of conflict management: diplomatic procedures and adjudication. Diplomatic procedures involve an attempt to resolve differences either by the contending parties themselves or with the help of other actors by the use of discussion and fact-finding methods. Adjudication procedures involve the determination of involved legal and factual issues by a disinterested third party, either by arbitration or by the decision of judicial organs. States are not obliged to resolve their differences; all the methods available to settle disputes need consent of all states concerned. In the mechanisms to deal with a dispute, one first needs to define the term ‘dispute’. The Permanent Court refers to this as ‘a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons’. Distinctions are made between legal and political conflict, or justiciable and non-justiciable disputes.
Diplomatic methods of dispute settlement
The simplest and most utilized form of dispute settlement is negotiation. It basically consists of discussions between the interested parties with a view to reconciling divergent opinions, or at least understanding the different positions maintained. Initially, it does not involve a third party. In certain circumstances, a duty to enter into negotiations exists, like in Art. 283(1) of the Convention on the Law of the Sea, which concerns differences of opinion in interpreting the Convention. Art. 33 of the UN Charter obligates parties involved in a dispute which, if continued, would endanger the international peace and security, to first seek a solution through negotiation before resorting to more complex forms of resolution.
The employment of the procedures of good office and mediation do involve a third party. This process aims at persuading the parties to reach satisfactory terms for the termination of the conflict by themselves. If the dispute is caused by differences of opinion on factual matters, the logical solution is often to institute a commission of inquiry to investigate the matter, although this way of dispute settlement is used very rarely. Another method is the process of conciliation, which involved a third-party investigation of the basis of the dispute and the submission of a report embodying suggestions for a settlement. These proposals are not binding.
Binding methods of dispute settlement
International arbitration is historically the most effective and equitable manner of dispute settlement, where diplomacy has failed. In the 1907 the Hague Conventions, a Permanent Court of Arbitration was established. Arbitration tribunals may be composed in different ways; there may be a single arbitrator or a collegiate body. In the latter case, each party will appoint an equal number of arbitrators with the chairman or umpire being appointed by either the parties or the arbitrators already nominated. International law is applied by arbitration tribunals, but the parties may agree upon certain principles to be taken into account by the tribunal, this can be specified in the compromis, the agreement in which a state expresses its consent to the interference of the tribunal. However, the tribunal is competent to determine the jurisdiction used. Once an arbitral award has been made, states are bound to it, unless there is a ‘nullity’, for example when the tribunal exceeds its powers under the compromis or has made ‘essential errors’. Arbitration combines elements of both diplomatic and judicial procedures, and its success depends both on the amount of goodwill the parties show when composing the compromis and on the negotiating processes. On the other hand, arbitration is an adjudicative technique in that the award is final and binding, and the arbitrators are required to base their decision on law.
After WWI, the need for an international legal system became apparent, and in 1920, the Permanent Court of International Justice (PCIJ) was created. After WWII, this was superseded by the International Court of Justice (ICJ), described in Art. 92 of the UN Charter as the ‘principal judicial organ’ of the UN.
The organization of the Court
The ICJ is composed by fifteen independent and judicially qualified members. They are elected by the General Assembly and the Security Council, voting separately from a list of qualified persons, drawn up by the national groups of the Permanent Court of Arbitration, or, in the case of UN members which are not represented in the PCA, by especially appointed national groups. Five judges a time are elected, and the election procedure takes place once every three years. The members of the Court are elected for nine years and may be re-elected. No member may exercise any political or administrative function or engage in any other professional occupation. The Court elects a president and vice-president and is situated in The Hague.
The jurisdiction of the Court
Generally, the International Court is a judicial institution which decides cases based ofn international law as it exists at date of the decision. It is not a legislative organ and can therefore not create law on its own. In the jurisdiction of the Court, political issues always play part a pArt. In Serbia and Montenegro v. UK, the issue of the judicial function of the Court was examined. It is stated that the Court makes use of three criteria when choosing between various grounds, upon which to accept or reject jurisdiction. First, there must be consistency with previous case-law in order to provide predictability, as ‘consistency is the essence of justicial reasoning’. Second, certitude, whereby the Court must choose the ground most secure in law. Thirdly, as the principal judicial organ of the UN, the Court must be ‘mindful of the possible implications and consequences for the pending cases’.
Art. 36(2) of the Statute of the Court requires that a matter brought before it should be a legal dispute, defined by the Court as ‘a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons’. The parties present the case to the Court, which in turn determines the subject-matter of the dispute, taken all the information into account.
The jurisdiction of the Court falls into two distinct parts: its capacity to decide disputes between states and its capacity to give advisory opinions when requested. Deciding on jurisdiction is matter for the Court itself, and once the Court has reached a decision assuming the character of res judicata, it becomes final and binding upon the parties.
The application must also be admissible, which refers to the application of relevant general rules of international law, such as exhaustion of local remedies in cases concerning diplomatic protection.
Art. 36(1) of the Statute of the Court declares that it has jurisdiction in all cases referred to by parties, and regarding all matters specifically provided for in the UN Charter of in treaties or conventions in force. Jurisdiction is based on the consent of the parties, which can be inferred from the conduct of the parties, but is has to be clearly present. As a consequence of this rule, the Court will not entertain actions between states that in reality implied a third state without its consent. Art. 36(2) of the Statute contains the so-called ‘optional clause’, which has been of great importance in extending the jurisdiction of the Court.
In its deliberations, the Court will apply the rules of international law as laid down in Art. 38, treaties, customs, general principles of law. However, the Court may decide a case ex aequo bono, on the basis of justice and equity not obstructed by technical legal rules where the parties agree. This has not yet occurred. When preliminary objections, which have to be made within three months after the delivery of the Memorial to the applicant state, have been excluded, the Court starts with gathering evidence. Regarding the introduction of evidence, the Court is flexible. Even evidence which has been illegally obtained can be taken into account, even though its probative value will be adjusted accordingly. The Court makes its own determination of the facts and then applies international law to those facts, hearing defenses and counter-claims. The burden of proof lies upon the party seeking to assert a particular fact, or upon the applicant who wishes to intervene, although the Court has stated that there is no burden of proof in the matter of jurisdiction.
Under Art. 41 of the Statute, the Court has the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve rights of either party. Another feature of the jurisdiction of the Court is that there is no general right of intervention in cases before the Court by third parties. When a state would want to, it can fill out an application which has to be submitted as soon as possible, but not after the closure of the written proceedings. Furthermore, the judgement of the Court, once given, is final and without appeal. In the event of dispute as to the meaning or scope of a judgement, any party can make a request for its interpretation. Although the ruling has no binding force except between the parties concerned, such decisions are often very influential in the evolution of new rules in international law. An application for the revision of a judgement can only be made when based upon the discovery of some very relevant fact, previously unknown to the Court.
Alongside the capacity to decide disputes between states, the Court may also give advisory opinions, at the request of any actor. Originally, the Court would only give their advice when both parties agree to take part in the proceedings. Recently this has become more usual, but only when the Court sees compelling reasons to do so.
The role of the Court
In relation to the UN, the Court possesses no power of judicial review of UN activities, even though it is its principal judicial organ. Apart from states and national courts, the power to request advice lies with the UN Secretary General.
The rules governing resort to force form a central element in international law, which it must attempt to minimize and regulate. However, international law is not able to enforce its will and must rely on consent, consensus, reciprocity and good faith of states.
Law and force from the ‘just war’ to the United Nations
The doctrine of just war stems from Ancient Rome, and was linked to Christianity. The doctrine began to change as the European nation-states arose, emphasizing the sovereignty of states. The requirement that peaceful solutions must be attempted to be found began to appear. With the Peace of Westphalia, 1648, the doctrine of just war disappeared from international law as the balance of power system was developed. States were more likely to resolve their disputes peacefully and stick to agreements. WWI marked the end of this system and the creation of the League of Nations. The League required that disputes were settled by the appropriate institution within the League. It did not prohibit war or use of force, but it did set up a procedure designed to restrict it to tolerable levels. The use of force in situations of self-defense was still a recognized principle in international law.
The UN Charter
Art. 2(4) of the Charter state the principle that all members of the UN must refrain from the use of force. This is regarded as a principle of customary international law and as such is binding upon all states in the international community. The use of the term ‘force’ covers violence in all sorts, not just in a state of war. The article was classified as a principle of international law in the 1970 Declaration on Principles of International Law, and analyzed systematically. First, wars of aggression constitute a crime against peace for which there is a responsibility under international law. Second, states must not threaten or use force to violate existing international frontiers or solve international disputes. Thirdly, states are under a duty to refrain from acts of reprisal involving the use of force. Fourthly, states must not use force to deprive peoples of their right to self-determination and independence. Fifthly, states must refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state and must not encourage the formation of armed bands for incursion into another state’s territory. The Declaration is not a binding legal document, but is important as an interpretation of the Charter. Exceptions to Art. 2(4) are collective measures taken by the UN and the right to self-defense.
What constitutes the term ‘force’? It can also mean economic force, or any form of coercion aimed against the political independence or territorial integrity of a state. Whether the open use of economic pressures constitutes a breach of Art. 2(4) is in particular dubious, but it is clear that such actions are contrary to the UN Charter, as interpreted in many resolutions and declarations. Art. 2(4) does also cover the threats of use of force. The mere possession of nuclear weapons does not, but if the projected use of the weapons was intended as a means of defense and there would be a consequential and necessary breach of the principles of necessity and proportionality that would suggest that a threat existed. Proportionality relates to the damage that might be caused or rather the scope of the threat to which the response in self-defense is proposed.
Categories of force
There are basically three categories of compulsion open to states under international law. First of all, there is retorsion. This is the adoption by one state of an unfriendly and harmful act, which is nevertheless lawful, as a method of retaliation against the injurious legal activities of another state. The second category consists of reprisals. Reprisals are acts which are in themselves illegal and have been adopted by one state in retaliation for the commission of an earlier illegal act by another state. The third category of force is the right to self-defense, which tradition definition in customary international law arose out of the Caroline-case. This dispute revolved around an incident in 1837 in which British subjects seized and destroyed a vessel in an American port. This had taken place because the Caroline had been supplying groups of American nationals, who had been conducting raids into Canadian territory. In the correspondence with the British authorities which followed the incident, the US Secretary of State laid down the essential of self-defense. There had to ‘exist a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. The principle is laid down in Art. 51 of the UN Charter. In order to be able to resort to force in self-defense, a state has to be able to demonstrate that is has been the victim of an armed attack and it bears the burden of proof.
A policy of pre-emptive self-defense is not accepted in international law, and at the heart of the right to self-defense lays the concepts of necessity and proportionality. Art. 51 requires that states report the use of force in light of self-defense immediately to the Security Council and actions may continue until the Council has taken the necessary measures to maintain international peace and security. Art. 51 refers to collective self-defense as well. How far may a state resort to the use of force to protect another state? Organizations like NATO have adopted this principle, stating that an attack on one member is treated as an attack upon all.
Intervention
The principle of non-intervention is part of customary international law and founded upon the concept of respect for the territorial sovereignty of states. Intervention is prohibited when concerning matters in which states are permitted to decide freely by virtue of the principle of state sovereignty. This includes the choice of political, economic, social and cultural systems and the formulation of foreign policy.
International law treats civil wars as purely internal matters, with the possible exception of self-determination conflicts. There is no rule against rebellion in international law, this is considered a domestic issue. As far as third parties are concerned, international law developed the categories of rebellion, insurgency and belligerency. These concepts are lacking in clarity and very subjective, but when rebellion turns to an insurgency, other states can choose to grant them certain rights. When it becomes belligerency, this is a formal status which grants rights and duties.
Humanitarian intervention by an individual state is difficult to reconcile with Art. 2(4) of the Charter. However, when severe human rights-violations are taking place, it is possible that such a right should evolve. This possibility has been confirmed in the 1999 Kosovo crisis, when NATO intervened without UN approval. What is allowed under international law is intervention to restore democracy.
Terrorism and international law
The problems international law encounters when dealing with terrorism are: firstly, the problem of definition. It is difficult to determine what exactly constitutes terrorism. The UN has currently adopted thirteen international conventions to deal with these problems. Secondly, the relationship between terrorism and the use of force by states in response. Thirdly, the relationship between terrorism and human rights. In dealing with these problems, the Security Council’s resolution, especially after 9/11, gives more certainty in the way international law regarding terrorism is interpreted.
The UN system
The United Nations was established after WWII, and its purposes are set out in art 1 of the UN Charter. The Charter is not only the multilateral treaty which created the organization and outlined the rights and obligations of those states signing it; it is also the constitution of the UN. The most fundamental principle is the recognition of the sovereignty and independence of states, the UN may not intervene in domestic affairs, as stated in Art. 2(7) of the Charter. Art. 2 also provides other principles, like the peaceful settlements of disputes and the prohibition on the use of force. The UN exists of six principle organs: the Security Council, General Assembly, Economic and Social Council, Trusteeship Council, Secretariat and International Court of Justice.
The Security Council
The Council was intended to operate as an efficient executive organ of limited membership, functioning continuously. It was given primary responsibility for the maintenance of international peace and security. The Council consists of fifteen members, five of them being permanent members (USA, UK, Russia, China and France). These permanent members have the right to veto, which can stop any resolution of the Council except procedural questions, which only require nine affirmative votes. This system is quite outdated, but difficult to change due to the complicated mechanisms for amendment in the Charter. The Council currently has three permanent committees a Committee of Experts on Rules of Procedure, a Committee on Admission of New Members and a Committee on Council meeting away from Headquarters. Also, a number of ad hoc committees exist. The Council acts on behalf of the members of the organization as a whole in performing its functions, and its decisions are binding upon all member states. Its powers fall in two categories: the peaceful settlement of disputes and the adoption of enforcement measures. Also, the Council performs a number of other tasks like recommending new member states to the General Assembly.
General Assembly
The General Assembly is the parliamentary body of the UN. It consists of representatives of all member states, currently 192. Art. 4 of the Charter states that the membership of the UN is open to all peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the organization. The General Assembly decides whether a state is allowed to join, upon recommendation of the Council. Membership of the UN may be suspended according to Art. 5 and expulsed according to Art. 6 of the Charter.
Voting in the Assembly is governed by Art. 18. Each member has one vote only and decisions on ‘important issues’ must be made by a two-third majority of members present and voting. It is essentially a debating chamber which meets annually, but the Secretary General may call special sessions by virtue of the Uniting for Peace machinery.
Other principal organs
The Economic and Social Council (ECOSOC) performs most of the work in the economic and social spheres, by performing studies and playing an advising role to many organs. Its powers are restricted and its recommendations are not binding upon member states. It consists of fifty-four members elected by the General Assembly for a period of three years, and each member has one vote. The Council has created many sub-organs, like the Office of the UN High Commissioner for Refugees and the UN Conference on Trade and Development.
The Trusteeship Council was established in order to supervise the trust territories created after the end of WWII. Trust territories are mandated territories, detached from enemy states after the war. After the independence of Palau, in 1994, the activities of the Council have been suspended.
The Secretariat of the UN consists of the Secretary General and his staff and constitutes virtually an international civil service, which is regulated in Art. 97-101 of the Charter. The current Secretary General is Ban Ki-Moon of the Republic of Korea. In practice, his role extends the provisions given in the Charter. He has an important role in exercising good offices in order to resolve or contain international crises and in marking and influencing developments.
The peaceful settlement of disputes
The provision set out in the UN Charter are largely based on the Covenant of the League of Nations. In Art. 12 of the Covenant three ways of settling disputes: by arbitration, by judicial settlement or by inquiry by the Council of the League of Nations. If the Council failed to reach a satisfying settlement, it was to publish a report with recommendations. These recommendations were however not binding upon the parties. When a member did go to war, in disregard of the Covenant, sanctions could be applied. When Italy went to war in 1935-36, sanctions were used but in a half-hearted manner.
The United Nations system is constituted in the functions of the principal organs. The Security Council has binding powers in its executive functions, and the Assembly is the parliamentary forum.
There has been much discussion about the effectiveness of this system. Chapter VI and Chapter VII deal respectively with the pacific settlements of disputes and with the action relating to threats to and breaches of the peace or acts of aggression. When Chapter VII is applicable, the Security Council may impose binding sanctions upon. The General Assembly is not primarily responsible in such cases but it may discuss any question or matter within the scope of the Charter, and it may make recommendations to member states and to the Security Council. The role of the Assembly has increased since WWII due to the existence of the veto in the Council, often rendering it powerless in many important disputes, and to the vast increase in the membership of the UN had the effect of radicalizing the Assembly and its deliberations.
The UN has played a very important role in disputes, especially after the end of the Cold War, and in the form of peacekeeping missions. The Secretary General has emphasized three particularly important principles of peacekeeping. These are the consent of the parties, impartiality and the non-use of force. Recently, a lot of research has been done to adapt the traditional manner of peacekeeping to the requirements of the present day.
The collective security system
The Security Council is granted primary responsibility in the collective security system of the UN in Art. 24 of the Charter, its decisions being binding according to Art. 25. Before the Council can adopt measures relating to the enforcement of world peace, Art. 29 requires they first determine the situation. The distinction between a threat to the peace, a breach to the peace or an act of aggression. The answer depends on the circumstances and the relations of the parties involved in the dispute to the permanent members of the Security Council, the USA, the UK, China, France and Russia, because of their veto in the Council. A threat to the peace is the broadest used determination, covering internal situations as well. Many of the Council’s resolutions have demonstrated the broad interpretation it gives to this term. There have been four actual breaches of the peace, the first in 1950 as a result of the intervention of South-Korea by North-Korea. The second incident was related to the Falkland dispute, the third was the Iran-Iraq war in 1987, and the fourth occasion was the Iraqi invasion of Kuwait in 1990.
Chapter VII measures
Art. 40 of the Charter provides measures to be taken in case of a threat to or breach of the peace or an act of aggression. These measures include calls for ceasefires and calls for the withdrawal of troops from foreign territory. The action to be taken by the Council can consist of non-violent measures (Art. 41) like the disruption of economic relations, or measures that call for the use of force (Art. 42).
Measure not involving the use of force can also consist of imposing an arms embargo, as it did in former Yugoslavia in 1991, or sending observers to the area. In the case of former Yugoslavia, a UN peacekeeping force was sent, UNPROFOR. The problem with economic sanctions, the most common one, is that it often effects the population and not the individuals it concerns. Art. 42 grants the Council the use of force when necessary. The following articles state the means it has to do so.
There have been many conflict areas in which the UN had to intervene. Besides the former Yugoslavia, some more examples are Somalia, where a peacekeeping mission turned to an enforcement mission in the circumstances, Rwanda, where observers were sent, and Sierra Leone, where the UN imposed an oil and arms embargo.
The Un has not been able to operate Chapter VII as originally imagined, but it has developed a variety of mechanisms to operate effectively. First and foremost, the Council may delegate its enforcement powers to member states. Also, the interpretation of the term ‘threat to the peace’ has become very flexible, allowing the UN to intervene in conflicts that would have been considered internal before.
The increasing activity in interventions by the Security Council, that question has arisen as to whether there is a body capable of ensuring that the Council acts in accordance with the Charter and with international law. The natural candidate would be the International Court of Justice, being the ‘principle judicial organ’ of the UN. In the Lockerbie-Case, the ICJ has affirmed that member states are bound by the Council’s resolutions. In determining the nature of a conflict the Council is virtually absolute. The measures it imposes are, when based on Chapter VII, binding and up to the Council to determine. When it imposes sanctions clearly wrong in law, a challenge to the system will be posed but this has not occurred so far.
The role of the General Assembly has increased as the veto of the permanent members of the Security Council often left it unable to act. The powers of the Assembly were defined very unclear in the Charter, in particular in Art. 10 to 14. In 1950, the Uniting for Peace resolution was adopted by the Assembly, founding the view that the Security Council has primary responsibility for peace, implying that the Assembly has secondary responsibility. The resolution declared that that when the Council failed to exercise its responsibility upon the occurrence of a threat to the peace, breach of the peace or act of aggression, because of the exercise of the veto by one of the permanent members, the General Assembly was to consider the matter at once and make recommendations to members for collective measures. Those measures could include the use of force when necessary.
The International Court however has decided in the Certain Expenses-case that the Assembly and the Secretary-General could only call for action which did not amount to enforcement action.. All in all, the United for Peace resolution has not led to a great change or improvement in the maintenance of international peace and security.
The Security Council has increasingly made use of regional organizations in the context of peacekeeping and peace enforcement, as stated in Chapter VIII of the UN Charter, in particular Art. 52-54. Several issues arise in the area op co-operation of the UN with regional arrangements and agencies. First, there is the issue of when regional actions may be deemed appropriate, recent events have demonstrated a broader measure of flexibility akin to the widening definition of what constitutes a threat to international peace and security. Secondly, there is the extent to which regional action is consistent with UN purposes and principles, and here the provision of Art. 103, assigning priority to Charter obligations over obligations contained in other international agreements, should be noted. Thirdly, there is the question as to whether a broad or narrow definition of enforcement action is to be accepted. Fourthly, the important issue is raised as to whether prior approval by the Security Council is required in order for a regional organization to engage in an activity consistent with Chapter VIII. Overall, the UN is keen to co-ordinate activity with regional organizations. The most dramatic and far reaching co-operation with a regional organization in the context of peacekeeping en enforcement is the UN-African Union Hybrid Operation in Darfur.
This summary of International Law by Shaw is published in 2014 and donated to JoHo WorldSupporter.
Pil Shrayee Mukherjee contributed on 18-11-2019 10:42
Notes
International relations Sabbi khan contributed on 18-10-2022 14:36
Book review
International law Jacky Hindjou contributed on 14-11-2023 13:47
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