International Law Detailed Notes For Css 2018 PDF

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International Law Detailed Notes for CSS 2018
Political Science (Lahore University of Management Sciences)
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International Law Detailed Notes

THE EUROPEAN UNION
I. ORIGIN AND FOUNDING OF THE EU
The European Union (E.U) was established by the Treaty of Maastricht (known as the Treaty on
the European Union) signed on February 7, 1992, and came into force on November 1, 1993. This
establishment was a new step, but not the last, in a long process initiated in 1951 to create an ever
closer union among the peoples of Europe.
The initial step toward European integration took place in 1951. On April 18, 1951, the Treaty of
Paris established the European Coal and Steel Community (ECSC). The Treaty provided for: (a) the
elimination of tariffs and quotas on trade within the community in iron ore, coal, and steel; (b)
common external tariffs on imports relating to the coal and steel industries from other countries; and
(c) controls on production and sales. To supervise the operation of the ECSC, the Treaty established
several supranational institutions.
On March 25, 1957, the Treaty of Rome established the Economic European Community (EEC)
[It was referred to as the European Common Market], and the European Community of Atomic
Energy (Euratom). The EEC Treaty provided for: (a) the gradual elimination of import duties and
quotas on all trade between Member States and for the institution of a common external tariff; (b)
the implementation of common policies regarding transportation, agriculture, and social insurance;
and (c) the free movement of peoples and funds within the boundaries of the Community. Both the
EEC and the Euratom treaties created separate high commissions to oversee their operations.
In July 1967, the three Communities, the EEC, the ECSC and Euratom, fully merged as the
European Community (EC). In February 1986, the EC Member States signed the Single European
Act (SEA), a package of amendments and additions to the existing EC treaties. On February 7,
1992, the Treaty of Maastricht was signed amending the treaties of EC and linking the three
communities of the EC together by a common organizational structure, and consequently
establishing the European Union (EU) built around the existing Communities. The Treaty of
Maastricht was intended to expand political, economic and social integration among the Member
States, and furthermore, to establish Economic and Monetary Union (EMU) among them.
The Treaty of Maastricht was amended by the Treaty of Amsterdam which was signed on
October 2, 1997 and came into force in 1999 (the Treaty of Amsterdam also amended the Treaty
Establishing the European Community). The Treaty of Amsterdam called for more cooperation
between the EU Member States, provided for the removal of barriers to travel and immigration
among the EU Member States, and permitted the possibility of admitting Eastern European
countries to the EU.
In May 1998, the EU agreed to adopt a single European currency, the Euro, and to establish the
European Central Bank (ECB) to oversee the new currency and to take charge of the monetary
policies of the EU. On January 1, 1999, the Euro was officially put in circulation. In 2002, the
currency of countries that adopted the Euro ceased to exist (the United Kingdom decided not to
adopt the Euro).
On February 26, 2001, the Treaty of Nice was signed; it was entered into force on February 1,
2003. The Treaty of Nice was concluded to amend the Treaty on the European Union, the Treaty
Establishing the European Community, and certain related acts. It dealt mostly with reforming the
EU institutions so that the Union could function efficiently after its enlargement to 25 Member
States. The Treaty of Nice and the former Treaties of the EU have been merged into one
consolidated version.
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II. STATUS AND MEMBERSHIP OF THE EU

The EU is an international regional organization within the framework of Chapter VIII of the
Charter of the United Nations. It is an organization of European countries dedicated to increasing
economic integration and strengthening cooperation among its members. Nevertheless, it is a
unique organization; it is not a federation like the United States, nor is it simply an organization for
cooperation between governments, like the United Nations. The countries that make up the EU
remain independent sovereign nations but they pool their sovereignty in order to gain a strength and
world influence none of them could have on their own. Pooling sovereignty means, in practice, that
the member states delegate some of their decision-making powers to shared institutions they have
created, so that decisions on specific matters of joint interest can be made at European level.
The European Union headquarters is located in Brussels, Belgium. Today the Union embraces
27 Member States. Between January 1995 and May 2004, the Union composed of 15 members. The
15 Member States of the Union were: Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and the United
Kingdom.
In May 2004, ten new members joined the Union, bringing its members to 25; these states were
eight countries of central and eastern Europe, namely the Czech Republic, Estonia, Latvia,
Lithuania, Hungary, Poland, Slovenia and Slovakia, and two other countries, namely Cyprus and
Malta. In January 2007, two new members, namely Bulgaria and Romania joined the Union,
bringing the members to 27.
III. PRINCIPLES OF THE EU

The Union is founded on the principle of liberty, democracy, respect for human rights and
fundamental freedom, and the rule of law, principles which are common to the Member
States. Moreover, the Union respects the national identities of the Member States.
IV. OBJECTIVES OF THE EU

The Treaty of the European Union sets the following objectives as the objectives of the Union:
a. To promote economic and social progress and a high level of employment and to achieve
balanced and sustainable development, in particular through the creation of an area without
frontiers;
b. To assert its identity on the international scene, in particular through the implementation of
common foreign and security policy including a common defense policy;
c. To strengthen the protection of the rights and interests of the nationals of its Member States
through the introduction of a citizenship of the Union;
d. To maintain and develop the Union as an area of freedom, security and justice.
V. ORGANIZATIONAL STRUCTURE OF THE EU

The major governing institutions of the E.U are: the European Commission, the Council of the
European Union, the European Parliament, the European Court of Justice, the European Court of
Auditors, and the European Central Bank. Alongside, there are a number of other bodies that play
specialized roles such as the European Economic and Social Committee, the Committee of the
Regions, the European Investment Bank, and the European Ombudsman. In addition, specialized
agencies have been set up to handle certain technical, scientific or management tasks.
1) European Commission
The European Commission is the highest administrative body of the Union. It is independent of
national governments. Its job is to represent and uphold the interests of the EU as a whole. It
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consists of 27 members (commissioners) who are appointed by the Council, acting by qualified
majority, for a period of five years, renewable. The Council acts on the common accord of the
member governments (each Member State has to nominate one commissioner) based on the grounds
of their (commissioners) general competence and whose independence is beyond any doubt. The
appointed members must be approved by the European Parliament; one of them will be the
President of the Commission. The members of the Commission must, in the interest of the Union,
be completely independent in the performance of their duties, and must not seek or take instructions
from any government or from any other body.
The Commission is EU executive arm. It is responsible for managing the day-to-day business of
the European Union: (a) proposing legislation to Parliament and the Council; (b) implementing its
policies and running its programmes; (c) managing its budget; (d) enforcing its law; and (e)
representing it on the international stage, for example by negotiating agreements between the EU
and other countries.
The Commission works under the political guidance of its President. It meets regularly, and acts
by the majority of its members. It is politically accountable to Parliament, which has the power to
dismiss the whole Commission by adopting a motion of censure. Individual members of the
Commission must resign if asked to do so by the President, provided the other commissioners
approve.
The Commission attends all the sessions of Parliament, where it must clarify and justify its
policies. It also replies regularly to written and oral questions posed by members of the Parliament.
The day-to-day running of the Commission is done by its administrative officials, experts,
translators, interpreters and secretarial staff. The ‗seat‘ of the Commission is in Brussels (Belgium),
but it also has offices in Luxembourg, representations in all EU countries and delegations in many
capital cities around the world.
2) Council of the European Union

The Council of the EU is the primary decision-making body of the EU, and the most important
and powerful one. It represents the governments of the Member States. It consists of 27
government ministers, one from each Member States. Its meetings are attended by ministers
concerned with the subjects on the agenda. Each minister in the Council is empowered to commit
his or her government, i.e., the minister‘s signature is the signature of the whole
government. Moreover, each minister in the Council is answerable to his or her national parliament
and to the citizens that parliament represents; this ensures the democratic legitimacy of the Council‘s
decisions.
The office of the Council‘s President rotates every six month. The Council meets when convened
by its President on his own initiative or at the request of one of its members or the Commission. The
Presidency is assisted by the General Secretariat, which prepares and ensures the smooth functioning
of the Council's work at all levels. The Council acts by a simple majority vote of its members on a
few minor issues, or by a qualified majority vote (QMV) on important issues. In QMV, each
Member State has an indivisible bloc of votes roughly proportional to its population; the bigger the
country‘s population, the more votes it has.
The primary responsibility of the Council is to ensure the attainment of the objectives of the
Union through decisions and coordination of the general policies of the Member states. In this
regard it has been entrusted with the following six key responsibilities:
1. To pass European laws, jointly with the European Parliament in many policy areas.
2. To co-ordinate the broad economic policies of the member states.
3. To conclude international agreements between the EU and other countries or international
organizations.
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4. To approve the EU budget, jointly with the European Parliament.
5. To develop the EU Common Foreign and Security Policy (CFSP) based on guidelines set by
the European Council.
6. To co-ordinate co-operation between the national courts and police forces in criminal matters.
3) European Parliament (EP)

The European Parliament (EP) consists of representatives of the peoples of the States, members
of the Union. Its members (EMPs) are directly elected by the citizens of the European Union to
represent their interests, for a term of five years. Direct elections to the EP were implemented in
1979; before this time, members were appointed by the legislatures of the member States. Elections
are held every five years, and every EU citizen who is on an electoral roll is entitled to
vote. Parliament thus expresses the democratic will of the Union's citizens (more than 490 million
people), and represents their interests in discussions with the other EU institutions.
The number of the representatives elected by each Member States is in a proportion roughly
appropriate to its population. The present parliament has 785 members from all 27 EU
countries. Nearly one third of them are women. Members of the European Parliament (MEPs) do
not sit in national blocks, but in seven Europe-wide political groups, among them, there are those
presenting all views on European integration, from the strongly pro-federalist to the openly
Eurocentric.
The E.P holds an annual session on the second Tuesday in March, and may meet in
extraordinary session at the request of a majority of its members or the request of the Council or the
Commission. It elects its President and its officers from among its members. It acts by an absolute
majority, save as otherwise provided in the Treaty on the Union.
The European Parliament has three places of work: Brussels (Belgium), Luxembourg and
Strasbourg (France). Luxembourg is home to the administrative offices (the General
Secretariat). Meetings of the whole Parliament, known as ―plenary sessions‖, take place in
Strasbourg and sometimes in Brussels. Committee meetings are also held in Brussels.
The EP was originally designed merely as an advisory body; however, its right to participate in
EU decision making process was granted to it by later treaties. Nowadays, the EP has the following
responsibilities:
1. Passing European laws, jointly with the Council in many policy areas.
2. Exercising democratic supervision over the other EU institutions, and in particular the
Commission. It discusses the annual general report submitted to it by the Commission. It has the
power to approve or reject the nomination of commissioners, and the right to censure the
Commission as a whole or any of its members.
3. Influencing the EU budget. Parliament shares with the Council authority over the EU budget
and can therefore influence EU spending. At the end of the procedure, it adopts or rejects the
budget in its entirety.
4. Vetoing the accession of a new member to the Union.
Notably, the influence of the E.P is essentially negative. It can block but rarely initiate
legislation. Its consultative opinions can be ignored. It has no power over the Council of the EU.
4) The European Court of Justice (ECJ)

The European Court of Justice (ECJ) is the judicial arm of the EU. It is based in Luxembourg. It
is composed of one judge per Member State, so that all 27 of the EU national legal systems are
represented. For the sake of efficiency, however, the Court rarely sits as the full court. It usually sits
as a ―Grand Chamber‖ of just 13 judges or in chambers of five or three judges. Judgments of the
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Court are decided by a majority vote and pronounced at a public hearing. Dissenting opinions are
not expressed. Decisions are published on the day of delivery.
The ECJ is responsible for the implementation of the treaties of the Union and the laws that the
EU establishes for itself and for its Member States: it ensures that the other EU institutions and the
Member States conform with the provisions of the EU treaties and legislations, and ensures that
the EU treaties and legislations are interpreted and applied in the same way in all EU countries, so
that the law is equal for everyone. The Court also has the power to settle legal disputes between EU
Member States, EU institutions, businesses and individuals.
Notably, the ECJ has no direct link with the national courts and no control over how they apply
and interpret national law, but it has established that the EU laws supersede national law.
The ECJ is assisted by eight ―Advocates General‖. The role of the Advocates General is to
present reasoned opinions on the cases brought before the Court; they must do so publicly and
impartially.
5) The European Court of Auditors

The European Court of Auditors consists of 27 members; one member from each EU states,
appointed by the Council for a renewable term of six years. The members elect one of them as
President for a renewable term of three years.
The Court of Auditors is based in Luxembourg. Its job is to check that EU funds, which come
from the taxpayers, are properly collected and that they are spent legally, economically and for the
intended purpose; its aim is to ensure that the taxpayers get maximum value for their money. The
Court of Auditors gives its opinion on proposals for EU financial legislation and for EU action to
fight fraud. Furthermore, it has the right to audit any person or organization handling EU funds.
6) The European Central Bank

The European Central Bank (ECB) was set up in 1998, under the Treaty on European Union,
and it is based in Frankfurt (Germany). Its job is to manage the euro, the EU single currency. The
ECB is also responsible for framing and implementing the EU economic and monetary policy.
To carry out its role, the ECB works with the European System of Central Banks (ESCB) which
covers all 27 EU Member States. However, only 13 of these members have so far adopted the
euro. The 13 members collectively make up the ―euro area‖ and their central banks, together with
the ECB, make up what is called the ―Eurosystem‖. The ECB, working closely with the national
central banks, prepares and implements the decisions taken by the Eurosystem decision-making
bodies: the Governing Council, the Executive Board and the General Council.
The ECB works in complete independence. Neither the ECB, the national central banks of the
Eurosystem, nor any member of their decision-making bodies can ask for or accept instructions from
any other body. The EU institutions and member state governments must respect this principle and
must not seek to influence the ECB or the national central banks.
VI. ACHIEVEMENTS OF THE EU

The European unity has come a long way since the first initial step of 1951, from a mere
economic cooperation between few European states, in specific areas, to a comprehensive
cooperation between a large number of European states, in almost all fields. The European Union
(EU) is the keystone for such comprehensive cooperation. It is the organization which provides the
framework for cooperation in economic and monetary, foreign and security, and justice and home
affairs between its Members, the 27 European States.
Since its establishment in 1992, the EU has been working hard for greater integration and
consolidation among its Member States. The membership of the EU has grown from 15 to 27
states. The EU has succeeded in establishing its supranational institutions and their supranational
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functions. It has succeeded in developing a common body of law, common policies and practices,
and a great deal of cooperation among its members. Particularly, it has formalized common
policies in combating crime, especially drug trafficking, and in visa issues, immigration, external
border controls and asylum. It has adopted the single European currency, the Euro. It has greatly
succeeded in developing a culture of collaboration between its Members.
Regarding the major objective of the EU to have a common foreign policy, to speak with one
voice and to have a single policy position on world issues, the EU has succeeded in achieving
common economics and trade policy with states outside the Union. Bilateral and multilateral trade
agreements have been signed between the EU and most developing countries. Common political
positions, however, have been adopted in certain situations, not in all situations facing the Union;
this has been due to conflicts between national interests of the Member States. EU ambassadors in
foreign capitals and at the United Nations collaborate closely, and EU member states develop
common foreign policy statements.
In conclusion, it is not an exaggeration to say that the EU has become a fact of life on the
international stage. It has succeeded in occupying an essential and central place in Europe and in
the World.
RECOGNITION AND ITS TYPES

DIFFERENCE BETWEEN DEFACTO AND DEJURE
International community is a living entity in the sense that it is changeable. The identity and
number of States are by no means fixed and invariable. History produces many changes. Old States
disappear or unite with other States to form a new State, or disintegrate and split into several new
States. Former colonies attain statehood. Even in the case of existing State, a revolution or
unconstitutional event may occur and the status of new government becomes a matter of concern to
other States, which formerly had relations with the displaced government. These instances raise
several problems for the international community. The most important problem is the question of
recognition of the new State or the new government. Each State has to decide whether to recognize
the new State or the new government.
Recognition involves legal consequences both internally and internationally. If an entity is
recognized as a State, it will be entitled to rights and subjected to duties that would not be relevant
otherwise, and it will enjoy privileges and immunities of a foreign State, before the national courts,
which would not be allowed to other entities.
What is recognition? Why and how is it granted? What are the types and forms of
recognition? What are the legal consequences generated from recognition?
The answers to all these questions are dealt with in the following sections.
SECTION 1: DEFINITION AND NATURE OF RECOGNITION
Recognition is a discretionary unilateral act exercised by the government of a State officially

acknowledging the existence of another State or government or belligerency. It is one of the most
difficult subjects of International Law. It is a complicating mixture of politics and laws both
national and international. It is difficult mainly for the following three reasons.
(1) Recognition is, as the practice of States shows, much more a question of politics than of law.
The act of the recognizing State is conditioned principally by the necessity of protecting its own
national interests, which lie in maintaining proper relations with the new State or the new
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government. However, there is an irresistible tendency of the recognizing State to use legal
principles as a convenient camouflage for political decisions. For this reason, recognition is
considered to be a political act with legal consequences.
(2) In form and in substance, recognition remains primarily a unilateral diplomatic act on the
part of the recognizing State. No collective procedure for granting recognition based on established
legal principles has yet been evolved by the international community.
(3) There are several distinct categories of recognition. There are the recognition of a new State,
a new government and belligerency. In addition there are de jure, de facto, conditional, implied and
express recognition. Although the same principles may be applicable to some of these types, it is still
that each of them is subject to different legal principles and entails different legal consequences.
Basically, there are two theories as to the nature, functions and effects of recognition, the
constitutive theory and the declaratory theory. The constitutive theory considers that the act of
recognition by other States creates a new State and grants it the international legal personality. This
implies that the new State is established as an international person by virtue of the will and consent
of already existing States. In case of a new government, it is the recognition that grants it the status
at the international level.
The Constitutive theory is opposed by the declaratory theory. According to the declaratory
theory, recognition has no legal effects; statehood or the status of a new government exists as such
prior to and independently of recognition. The existence of a State or a new government is a
question of pure fact. The act of recognition is merely a formal acknowledgement of established
facts. When an entity satisfies the requirements of a State objectively, it is a State with all
international rights and duties, and other States must treat it as such.
Historically, the constitutive theory has its merits. During the Nineteenth Century, International
Law was regarded as applying mainly between States with European civilization. Other countries
were admitted as States to this community only if they were recognized by those member States.
Even today, recognition can sometimes have a constitutive effect, although State practice is not
always consistent. When the establishment of a new State or government is in violation of
International Law, this State or government is often regarded as having no legal existence until it is
recognized.
However, the prevailing view today is that recognition is declaratory and does not create a State.
This view was laid down in the Montevideo Convention on the Rights and Duties of States of
1933. Article 3 of this Convention provides that ―The political existence of the state is independent
of recognition by the other states. Even before recognition the state has the right to defend its
integrity and independence‖.
Actually, the two theories are of little assistance in explaining recognition or determining the
status of non-recognized entities in practice. In addition, the practical differences between these two
theories are not significant. Under the declaratory theory, the decision whether an entity satisfies the
criteria of statehood is left to other States, and the granting formal recognition to another State,
which is a unilateral act, is left to the political discretion of States. On the other hand, the
significance of the constitutive theory has diminished because of the obligation imposed on States to
treat an entity that satisfies the criteria of statehood as a state. Moreover, the States practice
regarding recognition shows that States follow a middle position between these two theories.
SECTION 2: TYPES AND FORMS OF RECOGNITION

There are several distinct categories of recognition. There are recognition of a new State,
recognition of a new government and recognition of belligerency. In addition there are different
entities to be recognized. Recognition itself may take different forms. Recognition may be de
jure or de facto. Recognition may be express or implied. It may be conditional.
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(A) Recognition of a State and of a Government

When a new State comes into existence, other States are confronted with the question whether or
not to recognize it. Recognition implies a willingness of the recognizing State to deal with the new
state as a member of the international community. To grant recognition to a new entity, the entity
must satisfy the basic requirements of statehood, which have been discussed in the previous
chapter. The first example of State recognition in the history of nations was the recognition in 1648
by Spain of the United Netherlands
Recognition of a State defines its membership in the world community, and consequently
supports its claim as an international person. It allows the recognized State to exercise the rights and
duties of a State under International Law. Recognition of a new State automatically involves
recognition of its government, although the latter may be recognized only de facto.
Recognition of a new government is quite different from the recognition of a new State, although
in principle most of the considerations whether legal or political apply equally to both types of
recognition. As far as a State is concerned, the satisfaction of basic requirements of statehood is
examined by the recognizing State before granting its recognition to the new State. Recognition of a
new government requires its satisfaction of certain conditions such as effectiveness and
independence. Notably, the existence of an effective and independent government is the essence of
statehood. By recognizing a government, the recognizing State accepts to deal with this government
as the governing authority of the State and grant it the legal consequences of such status in terms of
privileges and immunities within its domestic legal system. In both these types of recognition, we
should not forget the great role played by political considerations in the decision whether or not to
grant recognition.
The granting or refusal of recognition of a government has no effect on the recognition of a State
itself. Recognition of a State affects its legal personality, whether creating or acknowledging it,
while recognition of a government affects its status as the governing authority, not the State. A
subsequent government may not be recognized, even though the recognition of a State is permanent
as regard to its existence and its status as a legal person under International Law. If the government
of a State is changed in accordance to constitutional processes, no problem of recognition arises as
long as the new government is firmly in power and secures stability in the country. In this case,
recognition by other States is purely a matter of formality. The problem of recognition of a new
government arises in cases when changes occur as a result of an unconstitutional practice or a
revolution. The recognition of the revolutionary government is a serious problem and the decision
thereon is made with great care. On this matter, no definite legal principles are established and the
practice of States is inconsistent and confused. However, certain rules have been recognized to
cover recognition of illegal changes in government. Such rules imply the acceptance of the realities
of the transfer of power and suggest that once a new government effectively controls the country and
that this seemed likely to continue, recognition should not be withheld.
(B) Recognition of Belligerency

Belligerency exists when a portion of the State‘s territory and population is under the de
facto control of insurgents seeking either to establish a separate State or to overthrow the existing
government. To be recognized as belligerents, the insurgents must have a political organization able
to exercise such control and maintain some degree of popular support, and conduct themselves
according to the laws of war. Accordingly, recognition of belligerency is a formal acknowledgement
by third-party States of the existence of a state of war between the State‘s central government and a
portion of that State. This implies that the recognizing State recognizes that a revolt within another
State has attained such a magnitude as to constitute in fact a state of war, entitling the revolutionists
or insurgents to the benefit, and imposing upon them the obligations, of the laws of war. Two
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conditions should exist before a third-party State grant belligerent recognition, the insurgency has
progressed to a state of general war and the effects of this war have gone beyond the borders of the
State to affect other States. By this recognition, the insurrectionary movement is elevated to the
status of a quasi-international person having certain rights and duties under International Law. This
sort of international personality is both nonpermanent and particular. It is nonpermanent, because
the insurrection may fail. It is particular, because it exists only for the recognizing States.
Recognition of belligerency was accorded during most of civil wars of the Nineteenth Century,
such as the revolts of the Spanish-American colonies and the American Civil War, and during most
of the wars of independence of the Twentieth Century.
To grant recognition of belligerency, the recognizing State is always dictated by the primary
motive, which is to protect and promote its national interests. The recognizing State may intend
either to get the status of neutrality between the belligerent parties or to support the legitimacy of the
insurrection.
(C) De Jure and De Facto Recognition

The practice of States draws a distinction between de jure and de facto recognition. This distinction
usually arises in the case of governments since States can normally be recognized only de jure,
although there have been few cases of recognizing States de facto. For example, Indonesia was
recognized de facto by several States while it was fighting for independence against Netherlands
during 1945-1949.
De jure recognition means that according to the recognizing State the recognized State or
government fulfils the requirements laid down by International Law. De facto recognition means that
in the opinion of the recognizing State, with all due reservations for the future, the recognized State
or government provisionally and temporarily fulfils the above requirements in fact. As such, de facto
recognition is provisional and temporary and could be withdrawn at any future date, although it is
usually followed by de jure recognition. Notably, the terms de jure and de facto describe the
government, not the act of recognition. Choosing the type of recognition to be granted, the
recognizing State is always occupied by political realities and considerations as well as its national
interests.
De facto recognition of a government implies that there is a doubt as to the permanence and
viability of the concerned government. De facto recognition involves a hesitant position by the
recognizing State, an attitude of wait and see, which is usually followed by de jure recognition when
the recognizing State accepts that the effective control exerted by the government in question is
permanent and firmly established and there is no legal basis for withholding the de jure recognition.
De facto recognition may be a preface stage to the de jure recognition, particularly in cases of
governments coming into power by unconstitutional processes. In such a case, de facto recognition is
a non-committal act whereby the recognizing State acknowledges that there is a de facto government
possessing in fact the powers of sovereignty, but such possession may be illegal, unstable or
nonpermanent. At a later stage when the need for reservations no longer exists because the
permanence of the de facto government is completely assured, de jure recognition is formally
granted. For example, United Kingdom recognized the Soviet government first de facto in 1921 and
later de jure in 1924.
During the Spanish Civil War (1936-1939), United Kingdom granted recognition to the two rival
parties, de jure recognition to the Republican government and de facto recognition to General
Franco‘s government that gradually took over the country and its recognition turned into de jure.
During 1988-1991, most States recognized the two rival governments in Lebanon de facto until the
ending of the insurrection led by General Aoun, and then the government of Salim Al Huss was
accorded de jure recognition.
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When recognition is granted by an express statement, it should always be regarded as de
jure recognition, unless the recognizing State provides otherwise. When recognition is implied, there
will often be uncertainty as to the intention of the recognizing State whether granting de jure or de
facto recognition.
Choosing the type of recognition to be granted, the recognizing State is occupied mostly with
political realities and considerations as well as own national interests, and to a lesser degree with
legal considerations. A statement that a government is recognized as de factomay, on one hand,
involve a purely political judgment, involving either a reluctant or cautious acceptance of an
effective government, lawfully established according to International Law, or an unwarranted
acceptance of it as a de jure government. It may, on the other hand, be intended to be or to include a
legal determination of the existence of an effective government, but with reservations as to its
viability and permanence. It may, of course, happen that the legal and political considerations for
caution coincide. The distinction between these two types of recognition is insubstantial, since it is a
question of intention, not of a legal matter. However, it is considered that de jure recognition is
irrevocable while de facto recognition can be withdrawn. Actually, in the political sense recognition
of either type can always be withdrawn, while in the legal sense it cannot be unless a change of
circumstances warrants such withdrawal.
Whatever the basis for the distinction between de jure and de facto recognition, the effects of the
two types are mostly the same. Nevertheless, there are certain important differences between these
two types, which are:
(a) Only the de jure recognized State or government can claim to receive property locally situated
in the territory of the recognizing State.
(b) Only the de jure recognized State or government can represent the old State for the purposes
of State succession or with regard of espousing any claim of its national for injury done by the
recognizing State in breach of International Law.
(c) The representatives of the de facto recognized state or government may not be entitled to full
diplomatic immunities and privileges.
Whatever the type of recognition, once given may in certain circumstances be

withdrawn. Actually, this is more easily done with regard to de facto recognition than to de
jure recognition, because of the nature of the former one, which is temporary. De factorecognition is
intended to be a preliminary acceptance of political realities and may be withdrawn in accordance
with a change in political conditions. When a de facto government loses its effective control over the
country, the reason for recognition disappears and it may be withdrawn. De jure recognition, on the
other hand, because it is intended to be generally a definitive act, it is more difficult to be
withdrawn. When a government recognized de jure is overthrown, a new situation arises and the
question of recognizing a new government will have to be faced. In such instance, the withdrawal of
recognition of the overthrown government is assumed; it does not have to be expressed. Withdrawal
of recognition of one government without recognizing a successor is a possibility. This approach,
for example, was adopted by the United Kingdom and France with regard to Colombia in 1979.
Withdrawal of recognition remains possible in other circumstances. The loss of one of the
required criteria of statehood will result in the withdrawal of recognition of a State. Recognition of
belligerency will naturally terminate with the end of the state of belligerency.
Because recognition is essentially a political act, no matter how circumscribed or conditioned by
the law, a State has a discretionary power to determine whether a particular situation justifies a
withdrawal of recognition and to take such action if it serves its national interests.
Notably, we must not confuse the withdrawal of recognition with the rupture in the diplomatic
relations. In the practice of States, the usual method of expressing disapproval with the actions of
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other governments is to break diplomatic relations, since this method does not entail the legal
consequences and the problems that the withdrawal of recognition would produce.
(D) Express and Implied Recognition

Recognition is essentially a matter of intention. It is founded upon the will and intention of a
State. It may be express or implied. The mode by which recognition is accomplished is of no special
significance. It is essential, however, that the act constituting recognition must give a clear
indication of the intention either to deal with the new State as such, or to accept the new
government as the effective government of the State and to maintain relation with it, or to recognize
in case of insurgents that they are entitled to belligerent rights.
Express recognition indicates the acknowledgment of the recognized State by a formal
declaration. In the practice of States, this formal declaration may happen by either a formal
announcement of recognition, a personal message from the head of a State or the minister of foreign
affairs, a diplomatic note, or a treaty of recognition.
Recognition needs not to be express. It may be implied in certain circumstances. There are
circumstances in which it may be possible to declare that in acting in a certain manner, one State
does by implication recognize another State or government. However, because of this possibility,
States may make an express declaration to the effect that a particular action involving another State
is by no means to be regarded as inferring any recognition. This position, for example, was
maintained by Arab States with regard to Israel.
Implied recognition is recognition of a State or a government through actions other than official
declarations or actions intended to grant recognition. The required actions for implied recognition
must be unequivocal, leaving no doubt of the intention of the State performing them to recognize the
State or government and to deal with it as such. There is a variety of actions undertaken by a State
in regard to an unrecognized State or government. Some actions are conclusively regarded implying
recognition, while others are not. Included in the first category are the official congratulatory
statements upon independence, the formal establishment of diplomatic relations and the conclusion
of a bilateral treaty. The actions that do not conclusively imply recognition are the participation in
multilateral treaty, the membership in international institutions, the common participation in
international conference, the maintenance of informal and unofficial contacts, the initiation of
negotiations with an unrecognized state, and the making of claims against an unrecognized State.
(E) Conditional Recognition
The political character of recognition is manifested in what is termed conditional
recognition. Sometimes States are recognized subject to certain conditions, generally the fulfillment
of certain obligations. Examples of such conditions are: the respect and the guarantee of the rights
of ethnics, national groups and minorities; the respect of religious freedoms; and the respect of the
rule of law, democracy and human rights.
The failure to fulfill the obligations does not annul the recognition, as once given it cannot be
withdrawn. The status obtained by the recognized State from the act of recognition cannot be
withdrawn. The recognized State will be guilty of a breach of International Law, and this will allow
the recognizing State to severe diplomatic relations as a form of sanction. However, the conditional
recognition of a State or government in process of emerging is probably revocable.
SECTION 3: LEGAL EFFECTS OF RECOGNITION

Although recognition is essentially a political act, it is one that entails important legal
consequences. Recognition involves legal effects both in the international level and in the domestic
level. If an entity is recognized as a State, it will be entitled to rights and subjected to duties that
would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State before
the national courts of other States, which would not be allowed to other entities.
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What are the effects of recognition? Are there effects for non-recognition? The Answers to these
two questions are dealt with in the following sub-sections.
(A) International effects of recognition

Apart of all the theoretical arguments involving the constitutive and declaratory theories, it is
accepted that recognition of a State or government is a legal acknowledgement of factual
situations. Recognition entails the recognized State the enjoyment of rights and the subjecting to
duties prescribed in International Law for States (these rights and duties are discussed in the
previous chapter).
Recognition of a State by another State does not lead to any obligation to establish diplomatic
relations or any other specific links between them. Nor does the termination of diplomatic relations
automatically lead to withdrawal of recognition. These remain a matter of political discretion.
It should not be assumed that non-recognition of a State or government would deprive that entity
rights and duties under International law. It is well established in International Law that the
political existence of a State is independent of recognition by other States, and thus an unrecognized
State must be deemed subject to the rules of International Law. Unrecognized State is entitled to
enjoy certain rights and be subject to many duties. It has the rights to defend its integrity and
independence, to provide for its conservation and prosperity and consequently to organize itself as it
sees fit. The exercise of these rights by unrecognized State has no other limitation than the exercise
of the rights of other States according to International Law. Moreover, unrecognized State is subject
to most of the rules of International Law, such as those related to the law of wars, and is bound by
its agreements.
Non-recognition, with its consequent absence of diplomatic relations, may affect the
unrecognized State in asserting its rights against unrecognizing States, or before their national
courts. However, non-recognition will not affect the existence of such rights, nor its duties, under
International Law.
(B) Internal Effects of Recognition

Recognition entails the recognized State the rights to enjoy privileges and immunities of a foreign
State before the national courts, which would not be allowed to other entities. However, because
recognition is essentially a political act reserved to the executive branch of government, the judiciary
branch must accept the discretion of the executive branch and give effect to its decisions. The
national courts can only accept and enforce the legal consequences that flow from the act of
recognition. They can accept the rights of a foreign government to sue, to be granted immunities or
to claim other rights of a governmental nature. They can give effect to the legislative and executive
acts of the recognized State. In the case of non-recognition, national courts will not accept such
rights. In this context, recognition is constitutive, because the act of recognition itself creates the
legal effects within the domestic jurisdiction of a State.
SOURCES OF PUBLIC INTERNATIONAL LAW

The term ―Sources of Public International Law‖ is used to mean two things: first, the actual
materials determining the rules applicable to a given international situation (the material sources),
and second, the legal methods creating rules of general application (the formal sources). However,
because it is difficult to maintain this distinction, the two meanings are used interchangeably.
Article 38 of the Statute of the International Court of Justice (ICJ) states the following:
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1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply,
a- international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b- international custom, as evidence of a general practice accepted as law;
c- the general principles of law recognized by civilized nations;
d- subject to the provisions of Article 59, judicial decisions and teaching of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
This Article lists the traditional sources of Public International Law, the actual legal materials
that the ICJ has to apply to international disputes. According to this Article, these sources are of
two types: the primary sources that are represented by the international conventions, international
custom and general principles of law; and the subsidiary sources that are represented by the
decisions of courts and the opinions of legal scholars. Moreover, this Article lists
―ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court
if the parties agree thereto. However, in addition to these traditional sources, there are
contemporary sources, such as the acts of the international organizations.
Thus, the sources of the contemporary Public International Law can be classified into seven:
1- International customs;
2- Treaties;
3- General principles of law;
4- Judicial decisions;
5- Opinions of legal scholars;
6- Ex aequo et bono (Equity);
7- Acts of international organizations.
In the following sections, these sources are discussed.
1. International Customs
Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general
practice accepted as law. This definition comprises of two elements: a general practice and its
acceptance as law. These two elements are necessary for the formation of customary international
law. The first element, the behavioral or objective element, requires a recurring consistent action or
lack of action by States, which is indicated by such activities as official statements or conducts,
legislative or administrative action, court decisions and diplomatic behaviors or correspondence.
The second element (the psychological or subjective element) entails the conviction that in similar
case such a practice is required or permitted by international law. In this sense, international
customs may be defined as practices or usages which have been observed by a large number of States
over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law.
Notably, the terms ―custom‖ and ―usage‖ are often used interchangeably. Strictly speaking, there
is a clear technical distinction between the two. Usage is an international habit of action that has not
received full attestation and does not reflect a legal obligation; an example of a usage is the salute at
sea. Usages may be conflicting; custom must be unified and consistent. A usage to become a
customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of
States and repetition over a lengthy period of time. A custom has a definite obligation attached to
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it. Failure to follow custom results in State responsibility, and consequently entails the possibility of
punishment (sanction) or of retaliation against that State.
International custom, as Article 38 indicates, is one of the primary sources of International Law
which the ICJ shall apply. In fact, international customs constituted the bulk of the rules of
International Law. Historically, custom had played a great role in the formation of the rules of
International Law. However, since the beginning of the Twentieth Century, this role has been
decreased in favor of the law-making treaties.
2. Treaties
The term ―treaty‖ is used as a generic term embracing all kinds of international agreements which
are known by a variety of different names such as, conventions, pacts, general acts, charters,
statutes, declarations, covenants, protocol, as well as, the name agreements itself. A treaty may be
defined as an international agreement concluded between States in written form and governed by
International Law.
Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general
or particular, establishing rules expressly recognized by the contesting states should be applied by the
Court to the disputes submitted to it. Although this Article divided treaties into two kinds, general
treaties and particular treaties; it is only the first kind, the general treaties or the so called the law-
making treaties, which intended to have a universal and general application, constitute a primary
source of International Law.
The particular treaties or the so called treaty-contracts are not directly a source of International
Law since their application is limited only to the contracting parties which are two or small number
of States, and they deal with limited affairs . This kind of treaties does not create new rules of
Public International Law, but at best, only new rules of particular or regional application. However,
as a substantial number of States accept and recognize such new rules formulated in this kind of
treaties as obligatory, these rules will become part of the Public International Law. Examples of
such treaties are bilateral treaties on commercial, and friendship relations.
The law-making treaties constitute a primary source of International Law. Since the middle of the
Nineteenth Century, there has been an astonishing development of law-making treaties. The rapid
expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent
demands arose from the changes which have been transforming the whole structure of international
life. Law-making treaties have been concluded to regulate almost every aspect concerning the
international community. Examples of important treaties are: the Charter of the United Nations,
the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the
International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the
Sea of 1982.
In contrast with the process of creating law through custom, treaties are a more modern, more
deliberate and speedy method. They are of growing importance in International Law. Their role in
the formation of new rules of International Law increases day after day. Today, the law-making
treaties are considered the most important primary source of Public International Law.
3. General Principles of Law

Article 38 of the Statute of the ICJ refers to ―the general principles of law recognized by civilized
nations‖ (all nations are now considered as civilized) as a primary source of International Law. This
source is listed the third after international conventions and international customs. The Court shall
apply the general principles of law in cases where treaties and customs provide no rules to be
applied.
Notably, there is no agreement on what the term ―general principles of law‖ means. Some say it
means general principles of international law; others say it means general principles of national
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law. Actually, there is no reason why it should not mean both; the greater expansion in the meaning
of this term, the greater chance of finding rules to fill the gaps in treaty law and customary
law. Indeed, international tribunals had applied general principles of law in both senses for many
years before the Permanent Court of International Justice was established in 1920.
Nevertheless, there are various opinions as to the origin of the general principles of law. Some
regard them as being originated from the Natural Law which underlies the system of International
Law and constitutes the criteria for testing the validity of the positive rules. Others regard them as
stemmed from the national legal systems (Positive Law) and have been transplanted to the
international level by recognition.
Whatever the meaning of the term ―general principles of law‖ and the origin of these principles,
these principles are considered to be at the foundation of any legal system, including International
Law. Actually, there is an agreement that the general principles of law do constitute a separate
source of International Law. Examples of general principles of law are the principles of consent,
equality, administration of justice, good faith, reciprocity, forbidding abuse of right
and res judicata.
4. Judicial Decisions
Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary
means for the determination of rules of law. This direction is made subject to the provisions of
Article 59, which states that ―the decision of the Court has no binding force except between the
parties and in respect of that particular case.‖ The provision of Article 59 of the Statute of the ICJ is
understood to mean that the Court is not obliged to follow previous decisions. So while, as Article
59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions
of certain courts must be followed by other courts, does not exist in International Law, it is still that
the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and
international courts have always strived to follow their previous decisions to insert certainty and
uniformity within their judicial process, or at least, they have had to take previous decisions into
account.
The judge of the ICJ sometimes does a little more than merely determine a law; he may establish
a law. This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated
the criteria for the recognition of baseline from which to measure the territorial sea; and
the Reparations case of 1949, which established the legal personality of international organizations.
The PCIJ, during its existence, gave a large number of decisions and advisory opinions on
matters of international concern, thereby developing International Law. The ICJ, the successor of
the PCIJ, has been doing the same.
As the term ―judicial decisions‖ referred to by Article 38 also encompasses decisions (awards) of
international arbitral courts (tribunals) and the decisions of national courts, these decisions have
been playing a role in the development of International Law.
There have been many international arbitral tribunals, such as the Permanent Court of
Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims
Tribunal and the Iran-US claims Tribunal. Although these tribunals differ from the international
courts in some ways, many of their decisions have been extremely significant in the development of
International Law.
The decisions of national courts of various nations have played a role the development of
International Law, particularly the international customary law. These Decisions help to form
international customs. They show what the national courts have accepted as international law and
how the International Law, in the given case, is understood in that country. Examples of such rules
of law developed by, or derived from the uniform decisions of national courts are certain rules of
extradition law, the rules related to State recognition, and the rules of diplomatic immunity.
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One may finally say that judicial decisions, whether international or national, have played an
important part in the development of International Law. The international customary law has
largely developed from case to case, and a large number of cases have been submitted to
international as well as national courts of various nations.
5. Writings of legal scholars

Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of
law, ―the teachings of the most qualified publicists of the various nations‖. The term ―teachings of
publicists‖ means ―writings‖, ―opinions‖ or ―works‖ of legal scholars, jurists or writers.
This Article emphasizes the evidentiary value of writings of the legal scholars. The primary
function of these writings is to provide reliable evidence of the law. Writers on International Law
cannot make the law; their works are to elucidate and ascertain the principles and rules of
International Law. To be binding, the rules and principles must have received the consent, whether
express or implied of States, who are to be bound by it.
Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel were
a primary factor in the evolution of the modern International Law; they were the supreme legal
authorities of the Sixteenth to Eighteenth Centuries. They determined the scope, form and content of
International Law. However, the importance of legal writings began to decline as a result of the
emphasis on the state sovereignty; treaties and customs assumed the dominant position in the
exposition and development of International Law.
Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the
existence of customary law and can help in developing new rules of law.
The opinions of legal scholars are used widely. Arbitral tribunals and national courts make
extensive use of the writings of jurists. However, the International Court of Justice makes little use
of jurisprudence, and judgments contain few references; this is, primarily, because of the willingness
of the Court to avoid a somewhat undesirable selection of citations. However, many references to
writers are found in the pleadings before the Court.
6. Ex aequo et bono (Equity)

Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the
Court in place of the normally employed legal rules. The Court can decide a case submitted to
it ex aequo et bono (in justice and fairness) only if the parties agree thereto. Ex aequo et bono is
somewhat analogous to but not exactly the same as the Common Law concept of equity. It is
broader than equity and gives the Court greater power than the latter. It allows the Court to decide a
case on considerations other than legal rules, or even in contrary to these rules, if it sensed that
justice can be served thereby . Thus the term ―ex aequo et bono‖ means ―justice and fairness‖ or
―equity‖.
Neither the International Court of Justice nor its predecessor, the Permanent Court of
International Justice, has been called upon to decide a case ex aequo et bono, although principles of
equity have been applied by these courts in some cases. The ICJ in the North Sea Continental cases
(1969) directed the delimination between the parties (West Germany, Holland and Denmark) ―in
accordance with equitable principles‖. The PCIJ in the Diversion of Water from the Meuse River case
(1937) applied principles of equity after considering them as part of the International Law which it
should apply.Moreover, international arbitral tribunals have resorted to the principles of equity in
several cases.
Despite the application of the principle of equity by international courts, the existence
of ―equity‖ as a separate and distinct source of law is highly controversial. Some regard equity as a
source of International Law, and apply it as distinguished from law; however, they often appeal to
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natural law in order to strengthen their arguments. Thus to them the three terms ―equity‖, ―justice‖
and ―natural law‖ tend to merge into one another. During the Sixteenth and Seventeenth Centuries
natural law was a major source of International Law. In the Nineteenth and Twentieth Centuries
arbitrators have often been authorized to apply justice and equity as well as International Law; such
authorization were more common before 1920 than they are today.
Other scholars do not recognize equity as a separate and distinct source of law; they regard the
principles of equity as part of the general principles of law that are common to all national legal
systems.
Whatever the position may be, it is doubtful whether equity form a source of international law. It
cannot be assumed that a judge uses equity as a source of law every time he describes a rule as
equitable or just. Strictly, ―equity‖ cannot be a source of law; yet it may play an important role in
supplementing the law or may appear as a part of judicial reasoning. A judge or arbitrator can
always use equity to interpret or fill gaps in the law, even when he has not been expressly authorized
to do so. But he may not give a decision ex aequo etbono unless he has been expressly authorized to
do so.
7. Acts of International Organizations

The growth of international organizations since the First World War has been accompanied by
suggestions that the acts of these organizations should be recognized as a source of International
Law.The question involved hereto is whether the decisions of the organs of these organizations can
be regarded as a separate source of International Law.
Decisions of the organs of international organizations may be binding or non-binding. An organ
may be authorized to take decisions which are binding on member states; only these binding
decisions are regarded as a source of the International Law. The only clear example of binding
decisions is the resolutions which the Security Council of the United Nations are authorized to take
under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to
threats to the peace, breaches of the peace, and acts of aggression.
However, there is a controversy concerns the non-binding decisions of the organs of the
international organizations. Since almost all the organs of the international organizations are
composed of representatives of member states and their acts are merely the acts of the states
represented in these organs, they would probably constitute an evidence of customary law because
they reflect the views of the state voting for them.
The obvious examples of such type of acts are the resolutions and declarations of the General
Assembly of the United Nations. When the vast majority of States, in the General Assembly,
consistently vote for resolutions and declarations on a certain topic, a State practice will be
established and a binding rule of customary International Law will emerge. Thus, these resolutions
and declarations will constitute an evidence of the existence of customary International
Law. Examples of such resolutions and declarations regarded as examples of State Practice which
have led to binding rules of customary International Law are: ―the Resolution on Prohibition of the
Use of Nuclear Weapons for War Purposes‖, ―the Declaration on Granting of Independence to
Colonial Countries and Peoples‖, ―the Declaration on Permanent Sovereignty over Natural
Resources‖ and ―the Declaration of Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space‖.
Resolutions and declarations of the General Assembly may also provide a basis for the
progressive development of the International Law and the speedy adaptation of customary law to
the conditions of modern life. Moreover, in some instances, a resolution or declaration may have
direct legal effects as an authoritative interpretation and application of the principles stated in the
Charter of the United Nations.
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THE COLD WAR

The Cold War was the conflict between the United States and its NATO allies - loosely described as
the West - and the former Soviet Union and its Warsaw Pact allies - loosely described as the Eastern
Bloc. A full-scale "east versus west" war never actually broke out, hence the metaphor of a "cold"
war, rather than a "hot" shooting war. Instead, the conflict was fought primarily on economic,
philosophic, cultural, social, and political levels. It continued from the end of World War II until the
breakup of the Soviet Union in the early 1990s. Except for the Korean War, Vietnam War and the
conflict in Afghanistan, the aggression between those two parts of the world never shaped in an
armed conflict, but was conducted by or against surrogates and through spies and traitors which
were working undercover. In each of those conflicts, at least one of the major powers operated
mainly by arming or funding surrogates. Because of that, the population of the major powers was
rarely directly impacted by this "war".
In the war between the U.S.S.R. and U.S.A. a major arena was the strategy of technology. This cold
war also involved covert conflict, through acts of espionage. Beyond the actual fighting and killing
that went on through intelligence services, the Cold War was heavily manifest in the concerns about
nuclear weapons and the wars which could be fought with them, as well as in the propaganda wars
between the United States and the USSR. It was far from clear, going through these times, that
global nuclear war would not result from the smaller arenas of conflict, giving each of them an
added degree of concern. These pressures impacted many aspects of life throughout the world, much
more so than the actual fighting going on between intelligence services.
One major hot spot of conflict was Germany, particularly Berlin. Arguably, the most vivid symbol of
the Cold War was the Berlin Wall, isolating West Berlin (the portion controlled by West Germany
and allied with France, England and the United States) from East Germany, which completely
surrounded it. Many East Germans risked death attempting to cross the defenses surrounding the
wall to reach freedom in West Berlin, and many were killed in the attempt. President Ronald
Reagan's challenge "Mr. Gorbachev, tear down this wall!" in 1988 seemed mere grandstanding, yet
the wall was torn down within two years -- not by Premier Gorbachev's order, but by the citizens of
East and West Berlin.
CAUSES OF THE COLD WAR:

A major difference of opinion between the two sides was over the merits of the political philosophy
of communism. The West, which opposed communism, called itself the "Free World" - arguably a
misnomer, as many of the nations on the Western side of the conflict were dictatorships. In some
cases, the United States overthrew democratic governments and replaced them with dictatorships
friendly to its interests, such as Guatemala in 1954 and Chile in 1973.
The cold war was waged through attempts to gain influence over intermediary countries, with
popular conception making much of spies and traitors working undercover. The Korean War, the
Vietnam War and the conflicts in Afghanistan, Grenada, Chad, Angola, Cuba and of course the
Middle East were aspects of the Cold War. The war was also fought by intelligence organizations
like the CIA (United States), MI6 (United Kingdom), Mossad (Israel), BND (West Germany),
STASI (East Germany) and the KGB (USSR).
THE END OF THE COLD WAR:

Enormous defense spending by America (the implications of which were first hinted at by President
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Eisenhower's speech on the Military-industrial complex) under President Ronald Reagan is often
seen as a major factor in the end of the war. According to this theory, the robust Western economies
could absorb the expenses of programs such as the Star Wars missile defense but the Eastern bloc
countries crippled themselves trying to match them. However, Reagan's policy towards the Soviet
Union defined Eastern bloc governments as "totalitarian", under a doctrine which denied that such
regimes could ever undergo internal transformation towards democracy. Thus Reagan's foreign
policy was never intended to bring about the changes which actually occurred in Eastern Europe and
the Soviet Union.
Corrupt governments and citizens' desire for greater personal freedom and greater individual wealth
were also major factors in the collapse of the Soviet Union and its satellite countries.
Others argue that the Soviet Union's collapse was already inevitable. There is certainly evidence that
the CIA played up Soviet military power through the 1980s.
THE EFFECTS OF THE COLD WAR:

The United States believed that the Soviet Union's expansion threatened the developing nations of
the world. So, in 1949 President Truman and Congress approved nearly $400 million for technical
development programs in Latin America, Asia, and Africa. The goal of this Point Four Program was
to modernize and strengthen developing nations and discourage the growth of communism.
Gorbachev's policy of Glasnost eliminated the strict censorship practiced for hundreds of years.
Glasnost stands for openness, and Soviet citizens were now allowed to speak openly about their
country's problems. Perestroika, or "restructuring," was Gorbachev's attempt to end the inefficiency
and corruption in government.
The United States and other Western nations decided to form alliances against possible Soviet
attempts to extend their sphere of influence. In April 1949 the United States signed the North
Atlantic Treaty. Members agreed that an attack on one of them would be considered an attack on all
of them. The Soviets later formed an opposing alliance known as The Warsaw Pact. Because of the
arms race many countries in the world now own nuclear weapons.
TIMELINE OF THE COLD WAR:
1940s
1945: February 4-11-- Yalta Conference Cold War Begins
1945: August 6 -- United States first used atomic bomb in war (A bomb was dropped on Hiroshima
+ Nagasaki)
1945: August 8 -- Russia enters war against Japan
1945: August 14 -- Japanese surrender End of World War II
1946: March -- Winston Churchill delivers "Iron Curtain" Speech
1947: March -- Truman declares active role in Greek Civil War
1947: June -- Marshall Plan is announced
1948: February -- Communist takeover in Czechoslovakia
1948: June 24 -- Berlin Blockade begins
1949: July -- NATO ratified
1949: May 12 -- Berlin Blockade ends
1949: September -- Mao Zedong, a Communist, takes control of China
1949: September -- Soviets explode first atomic bomb
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1950s
1950: February -- Joe McCarthy begins Communist witch hunt
1950: June -- Korean War begin
1951: January 12 -- Federal Civil Defense Administration established
1953: June 19 -- Rosenberg executions
1953: July -- Korean War ends
1954: March -- KGB established
1954 -- CIA helps overthrow unfriendly regimes in Iran and Guatemala
1954: July -- Vietnam split at 17th parallel
1955: May -- Warsaw Pact formed
1956: October - November -- Rebellion put down in Communist Hungary. Egypt took control of
Suez Canal; U.S. refused to help take it back.
1957: October 4 -- Sputnik launched into orbit
1958: November -- Khrushchev demands withdrawal of troops from Berlin
1959: January -- Cuba taken over by Fidel Castro
1959: September -- Khrushchev visits United States; denied access to Disneyland
1960s
1960: May -- Soviet Union reveals that U.S. spy plane was shot down over Soviet territory
1960: November -- John F. Kennedy elected President
1961: April -- Bay of Pigs invasion
1961: July -- Kennedy requests 25% spending increase for military
1961: August 13 -- Berlin border closed
1961: August 17 -- Construction of Berlin Wall begins
1962: -- U.S. involvement in Vietnam increased
1962: October -- Cuban Missile Crisis
1963: July -- Nuclear Test Ban Treaty ratified
1963: November -- President Kennedy assassinated in Dallas, Texas
1964: August -- Gulf of Tonkin incident
1965: April -- U.S. Marines sent to Dominican Republic to fight Communism
1965: July -- Announcement of dispatching of 150,000 U.S. troops to Vietnam
1968: January -- North Korea captured U.S.S. Pueblo
1968: August -- Soviet troops crush Czechoslovakian revolt
1969: July 20 -- Apollo 11 lands on the moon
1970s
1970: April -- President Nixon extends Vietnam War to Cambodia
1972: July -- SALT I signed
1973: January -- Cease fire in Vietnam between North Vietnam and United States
1973: September -- United States helps overthrow Chile government
1973: October -- Egypt and Syria attack Israel; Egypt requests Soviet aid
1974: August -- President Nixon resigns
1975: April 17 -- North Vietnam defeats South Vietnam
1979: July -- SALT II signed
1979: November -- Shah of Iran overthrown; Iranian Hostage Crisis
1980s
1983: -- President Reagan proposes Strategic Defense Initiative
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1983: October -- U.S. troops overthrow regime in Grenada
1985: -- Iran-Contra Affair (arms sold to Iran, profits used to support contras in Nicaragua)
1985: -- Mikhail Gorbachev ascends to power in Soviet Union
1986: -- Gorbachev ends economic aid to Soviet satellites
1986: October -- Reagan and Gorbachev resolve to remove all intermediate nuclear missiles from
Europe
1986: November -- Iran-Contra Affair revealed to public
1987: October -- Reagan and Gorbachev agree to remove all medium and short-range nuclear
missiles by signing treaty
1989: January -- Soviet troops withdraw from Afghanistan
1989: June -- China puts down protests for democracy; Poland becomes independent
1989: September -- Hungary becomes independent
1989: November -- Berlin Wall falls
1989: December -- Communist governments fall in Czechoslovakia, Bulgaria, and Rumania; Soviet
empire ends
1990s
1990: March -- Lithuania becomes independent
1990: May 29 -- Boris Yeltsin elected to presidency of Russia
1990: October 3 -- Germany reunited
1991: April -- Warsaw Pact ends
1991: August -- End of Soviet Union, Cold War Ends
A STATE AS A SUBJECT OF INTERNATIONAL LAW

In general, a subject (a person) of law is an entity to whom the law provides rights and assigns
obligations. The requirements to be met for an entity to be considered a subject of International Law
are the ability to have rights and obligations under International Law, the capacity to enter into
relations with other subjects and to stand before international courts. States are, in this sense, clearly
subjects of International Law since they fulfill all of these requirements.
A State is the primary legal subject (person) in International Law. A State, by evidencing a
separate legal and corporate personality, fulfills the basic requirement for the entrance into the
community of nations. For an entity to be a State, it should be free from political control of another
State and be free to enter into relations with other States.
What is a State? What are the criteria of statehood? What are the rights and duties of a
State? The answers to these questions are dealt with in the following sections.
SECTION 1: DEFINITION AND REQUIREMENTS OF STATEHOOD
There is no exact definition of the term ―State‖ in International Law. However in this law, the
essential criteria for statehood are well settled. Article 1 of the Montevideo Convention on the
Rights and Duties of States of 1933 provides the following:
The state as a person of international law should possess the following qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
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d. capacity to enter into relations with other States.
According to this article an entity to be a person of International Law, it should fulfill the
enumerated qualifications which are regarded as the essential requirements or characteristics of
statehood. However, these requirements are not exhaustive; other requirements may be relevant
including sovereignty, independence, self-determination and recognition; these requirements are
considered in correlation of the essential requirements. All these requirements are considered below.
(a) A Permanent Population

The existence of a permanent population is naturally required as an initial evidence of the
existence of a State. This requirement suggests a stable community. Evidentially it is important,
since in the absence of the physical basis for an organized community, it will be difficult to establish
the existence of a State. The size of the population, however, is not relevant since International Law
does not specify the minimum number of inhabitants as a requirement of statehood. Nevertheless,
an acceptable minimum number of inhabitants is required with regard to self-determination
criterion.
(b) A Defined Territory

The requirement of a permanent population is intended to be used in association with that of
territory. What is required by a defined territory is that there must be a certain portion of land
inhabited by a stable community. A defined territory does not suggests that the territory must be
fixed and the boundaries be settled since these are not essential to the existence of a State, although
in fact all modern States are contained within territorial limits or boundaries.
The past practice shows that the existence of fully defined boundaries is not required and that
what matters is the existence of an effective political authority having control over a particular
portion of land. In 1913, Albania was recognized as a State by a number of States even though it
lacked settled boundaries, and Israel was admitted to the United Nations as a State in spite of
disputes over its existence and territorial delineation.
The existence of a particular territory over which a political authority operates is essential for the
existence of a State. For this reason, the ―State of Palestine‖ declared in November 1988 at the
conference of Algiers was not legally regarded as a valid State since the Palestine Liberation
Organization had have no control over any part of the territory it was claiming.
The size of the territory of a State and alterations to its extent, whether by increase or decrease,
do not of themselves change the identity of that State.
A State continues to exist as long as a portion of land is retained.
(c) A Government
For a stable community to function reasonably effectively, it needs some sort of political
organization. It is required that an effective government be created, and this political authority
must be strong enough to assert itself throughout the territory of the State without a foreign
assistance. The existence of an effective government, with some sort of centralized administrative
and legislative organs, assures the internal stability of the State, and of its ability to fulfill its
international obligations.
However, the requirement related to the existence of an effective government having control
throughout its territory although strictly applied in the past practice, it has been subjected to certain
modification in modern practice. In certain cases, the requirement of an effective government was
not regarded as precondition for recognition as an independent State. The State of Croatia and the
State of Bosnia and Herzegovina were recognized as independent States by the member States of the
European Community, and admitted to membership of the United Nations at a time when
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substantial areas of the territories of each of them, because of the civil war situations, were outside
the control of each government. In other cases, the requirement of an organized government was
unnecessary or insufficient to support statehood. Some States had arisen before government was
very well organized, as for example, Burundi and Rwanda which were admitted as States to the
membership of the United Nations in 1961.
Moreover, a State does not cease to exist when it is temporarily deprived of an effective
government because of civil war or similar upheavals. The long period of de facto partition of
Lebanon did not hamper its continuance as a State. The lack of a government in Somalia did not
abolish the international personality of the country. Even when all the territory of a State is
occupied by the enemy in wartime, it continues to exist as in the cases of the occupation of
European States by Germany in the Second World War and the occupation of Germany and Japan
by the Allied powers after that war.
Nevertheless, the requirement of effective government remains strictly applied in case when part
of the population of a State tries to break away to form a new State.
(d) A Capacity to Enter into Relations with Other States

The capacity to enter into relations with other States is an attribute of the existence of an
international legal personality. A State must have recognized capacity to maintain external relations
with other States. Such capacity is essential for a sovereign State; lack of such capacity will avert the
entity from being an independent State. Capacity distinguishes States from lesser entities such as
members of federation or protectorates, which do not manage their own foreign affairs, and are not
recognized by other States as full-members of the international community.
(e) Other Requirements

Independence, sovereignty, self-determination and recognition are other requirements of
statehood used either as separate criteria or in association with the above requirements. The concept
of independence means that the State is subject to no other State. Many jurists stress on
independence as the decisive criterion of statehood.[ Some consider independence the essence of a
capacity to enter into relations with other States, and represented by this capacity. Others consider it
in association with the requirement of effective government; to them, if an entity has its own
executive and other organs, and conducts its foreign relations through its own organs, then it is
independent, and this is a prima facie evidence of statehood.
Some jurists consider sovereignty as an important criterion of statehood; even some of them use
the term sovereignty as a synonym for independence. The concept of sovereignty denotes, internally,
the supreme undivided authority possessed by a State to enact and enforce its law with respect to all
persons, property and events within its borders, and externally, the capacity of a State to enter into
relations with other States, such as sending and receiving diplomats and engaging in treaty making,
and the enjoyment of certain immunities and privileges from the jurisdiction of other States.
Sovereignty, in this regard, is the indication of the international personality of an entity seeking a
status of a State in the community of nations. Lack of sovereignty suggests that an entity is not
independent and has no international legal personality, and consequently, not a State. However,
some others reject sovereignty as a criterion of statehood on the considerations that Germany after
1945, although lost considerable extent of its sovereignty, it continued to exist as a State.
In the practice of States, the principle of self-determination has been used as a criterion modifying
the requirement of effective government. The evolution of the right of self-determination has
affected the level of effectiveness a concerned government required to exercise in order to fulfill such
requirement of statehood. Therefore, a lower level of effectiveness has been accepted; this occurred
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particularly in decolonization situations where colonies were seeking their independence and the
creation of their States. Moreover, the principle of self-determination has been used as an additional
criterion of statehood in certain circumstances, such as, in the case of Rhodesia when it unilaterally
declared independence on November 11, 1965, and in the cases of the successor States of the former
Yugoslavia. This additional criterion may be required in the future in cases of certain national
minorities seeking independence and the creation of their States.
In the context of the constitutive theory of recognition, recognition has been required as an
additional criterion of statehood. The constitutive theory considers that the act of recognition
constitutes or creates the new State, i.e., that the existence of a State begins with its recognition by
other States. Accordingly, it is only through recognition that a State comes into being under
International Law. The practice of States has required recognition as an additional criterion of
statehood in certain instances, such as in the case of Rhodesia in 1965. At that time, although
Rhodesia might have been regarded as a State by virtue of satisfaction of all the requirements of
statehood (the factual requirements) enumerated in the Montevideo Convention of 1933, its status as
a State was denied because no State did recognize it.
SECTION 2: FUNDAMENTAL RIGHTS AND DUTIES OF A STATE

Rights and duties of a State have been the primary concern of International Law. The
formulation of a list of the so-called fundamental or basic rights and duties of a State has been a
persistent preoccupation of international conferences and bodies. The Montevideo Convention of
1933 on the Rights and Duties of States was the first attempt in the process of such formulation. This
attempt was followed by the preparation of the International Law Commission of the United Nation
―the Draft Declaration on the Rights and Duties of States of 1949‖, and the adoption of the General
Assembly of the United Nations the Resolution 2625 of 1970 entitled the ―Declaration on Principles
of International Law Concerning Friendly Relations and Cooperation Among States in Accordance
with the Charter of the United Nations.‖ The above instruments, together with the Charter of the
United Nations, provide references for fundamental rights and duties of States.
Accordingly, under International Law States are entitled to enjoy certain fundamental rights and
bound by certain duties.
A. Rights of a State
The rights of a State are those inherent rights which a State is entitled to under International
law. These rights exist by virtue of the international legal order, which is able to define the rights of
its subjects.
Among the fundamental rights of a state are the following:
(1) The Right of Independence

Apart of being a requirement of statehood as mentioned previously, independence is an
outstanding fundamental right of a State. Independence as defined by the Draft Declaration on the
Rights and Duties of States of 1949 is the capacity of a State to provide for its own well-being and
development free from the domination of other states.
However, any political or economic dependence that may in reality exist does not affect the legal
independence of the State, unless that State is formally compelled to submit to the demands of a
superior State, in such a case a dependent Status is involved.
The right of independence in International Law includes a number of rights, such as, the right of
territorial integrity, and the right to have an exclusive control over own domestic affairs.
(2) The Right of Sovereignty

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The right of sovereignty is a fundamental right of a State. All States must enjoy such
right. Sovereignty has twofold meaning. Firstly, sovereignty means that a State has the supreme
undivided authority over its territory--this concept of sovereignty is known as territorial
sovereignty. Secondly, sovereignty means the capacity of a State to enter into relations with other
States, such as sending and receiving diplomats and engaging in treaty making, and the enjoyment
of certain immunities and privileges from the jurisdiction of other States--this concept is connected
with the concept of international personality.
Sovereignty has a much more restrictive meaning today than in the 18th and 19th Centuries when,
with the emergence of powerful national States, few limits on State sovereignty were accepted. At
the present time there is hardly a State has not accepted, in the interest of international community,
restrictions and limitations on its freedom of action. Actually, the exercise of sovereignty today is
not absolute. A State has subjected its sovereign powers to several limitations by virtue of treaties or
decisions of international organizations of which it is a member, or by virtue of its consent.
(3) The Right of Territorial Jurisdiction

The Right of Territorial Jurisdiction is derived from the right of sovereignty. This right entitles a
State to have the absolute and exclusive authority over all persons, property and events within the
limits of its national territory. This authority implies jurisdiction of the State to enact the law, to
enforce the law and to adjudicate persons and events within its territorial land, its internal and
territorial water, and national air space.
(4) The Right of Sovereign Equality

Sovereign equality means that all State have equal rights and duties, have the same juridical
capacities and functions, and are equal members of the international community, notwithstanding
differences of an economic, social, political or other nature. Sovereign equality is mentioned in the
Charter of the United Nations as the principle on which this Organization is based.
(5) The Right of Self-Defense

The right of self-defense to which a State is entitled is recognized by Customary International
Law as well as Article 51 of the Charter of the United Nations. However, this right cannot be
exercised by a State unless an armed attack occurs against it and until the Security Council has taken
the measures necessary to maintain international peace and security. In invoking this right, the State
must comply with the requirements of Customary Law, which are the use of peaceful procedures—if
they are available, necessity and proportionality.
B. Duties of a State
In correlation to the rights of the States, there are duties binding the States. All States are bound
to observe their duties under International Law. Non-compliance of a State with its duties
constitutes a violation of International Law for which it is responsible under this Law. Among the
duties of a State are the following.
(1) The Duty to Refrain from the Threat or Use of Force

A State is under a duty to refrain in its international relations from the threat or use of force
against the territorial integrity or political independence of any State. This duty includes within its
scope certain recognized duties, such as, the duty to refrain from propaganda for wars and
aggression, the duty to refrain from organizing or encouraging the organization of irregular forces or
armed bands for incursion into the territory of another state, the duty to refrain from organizing,
assisting or participating in acts of civil strife or terrorist act in another State and the duty to refrain
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from forcible action which derives peoples from their rights to self-determination, freedom and
independence.
However, the use of force is accepted and considered lawful under International Law only if it is
exercised in case of self-defense and in accordance with the provisions of the Charter of the United
Nations.
(2) The Duty to Settle International Disputes by Peaceful Means

A State is under a duty to settle its international disputes with other States by peaceful means in
such a manner that international peace, security, and justice are not endangered. The Charter of the
United Nations, in Chapter 6, provided the machinery for the fulfillment of this duty by the States.
Accordingly, States must seek a just settlement of its international dispute by any of the peaceful
means stated in the Charter or by any peaceful means agreed upon by them. In case of their failure
to reach a peaceful settlement by themselves, they are under a duty to comply with the actions taken
by the United Nations.
(3) The Duty not to Intervene in the Affairs of Other States

A State is under a duty not to intervene, directly or indirectly, for whatever reason, in the
internal or external affairs of any other State. It constitutes a violation of International Law any
use, encourage the use or threat to use of military, economic, political or any other form of
intervention against a State or against its political, economic and cultural elements.
(4) The Duty to Co-Operate with One Another

A State is under a duty to co-operate with other States, irrespective of the differences in their
political, economic and social systems, in various spheres of international relations, in accordance
with the Charter of the United Nations. Accordingly, a State should co-operate with other States in
the economic, social, cultural, educational and scientific fields, as well as, in the fields of peace and
security, and human rights and freedoms.
(5) The Duty of a State to Fulfill Its Obligations in Good Faith

A State is under a duty to fulfill in good faith the obligations assumed by it under the Charter of
the United Nations and the International Law, including international treaties. The concept of good
faith implies that a State should perform its assumed obligations honestly, without malice and
defraud, and without seeking unconscionable advantage.
STATE RESPONSIBILITY
State responsibility is one of the fundamental principles of International Law. It arises out of the
international legal system and the principles of State sovereignty and equality of States. It implies
that if a State commits an internationally wrongful (unlawful) act against another State, it will be
internationally responsible for reparation.
The subject of State responsibility has been the most difficult question of the codification work of
the International Law Commission (ILC). The ILC has been working extensively on this subject.
In 1975, the ILC initiated its work on the draft articles concerning State responsibility. The Articles
on the State Responsibility was finally adopted by the ILC on August 9, 2001. The General
Assembly adopted the resolution 83/56 of December 12, 2001, taking note of ―the International
Law Commission‘s Articles on the State Responsibility‖ and recommending it to the member States
of the United Nations. The ILC Articles, in addition to the State practice and the decisions of
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international tribunals (the case law) on the subject, constitute the international law of State
responsibility.
The law of State responsibility is concerned with the nature of the State responsibility, the legal
consequences resulted from, and the implementation of such responsibility.
SECTION 1: THE BASIS AND NATURE OF STATE RESPONSIBILITY

State responsibility is founded on three basic elements. The first element is the existence of an
international legal obligation in force between the concerned States. The second is the occurrence of
a wrongful act or the omission of an act in violation of such an obligation, which is imputable to the
State. The third is that loss or damage has resulted from such wrongful act or omission. These three
elements are the requirements of establishing the responsibility of the State, which have been made
in a number of leading international legal cases and reiterated by the ILC ―Articles‖.
The ―Articles‖ provides that every internationally wrongful act (a delict) of a State entails
responsibility. It defines internationally wrongful act as a conduct consisting of an action or
omission attributable to the State under International Law and constitutes a breach of an
international obligation of the State. A breach of an international obligation is defined as an act
which is not in conformity with what is required of the State by that obligation, regardless of its
origin or character.
Responsibility is the necessary corollary of a right. All rights of an international character involve
international responsibility.
International Law does not distinguish between contractual (conventional) and tortious
responsibility. International responsibility relates both to breaches of treaty and to other breaches of
legal duty.Any violation by a State of any obligation of whatever origin or character gives rise to
State responsibility and consequently to the duty of reparation. Reparation therefore is the
indispensable complement of a failure of a State to apply any of its obligations.
State responsibility only arises when the act or omission which constitutes a breach of legal
obligation is imputable (attributable) to a State. It may be founded on ―fault‖ or ―no fault‖ concept.
Notably, it is important to mention here that a State is responsible for wrongful acts which
constitute international delicts, not international crimes. Because of the controversy concerning
State responsibility for international crimes, the ILC Articles does not mention international crimes.
However, the ILC Draft Articles made a distinction between international crimes and international
delicts. The Draft Articles provided that an international wrongful act resulting from the breach of
an international obligation which was essential for the protection of fundamental interests of the
international community and which was recognized as a crime by that community constituted an
international crime; examples of such international crimes were aggression, colonial domination,
slavery, genocide, apartheid and massive pollution of the atmosphere. All other international
wrongful acts constituted international delicts.
While it is apparent that a State is responsible for international delicts, it is not clear that it is
responsible for international crimes. The question of State criminal responsibility has been highly
controversial. Some have argued that the concept is of no legal value and cannot be justified. Others
have argued that since 1945 the attitude towards certain crimes committed by State has altered so as
to bring them within the scope of International Law. They have pointed to three specific changes
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that have occurred since 1945 to justify States responsibility for international crimes.
The first change has been the development of the concept of peremptory norms of International Law
(jus cogens) as a set of principles from which no derogation is allowed.
The second change is the establishment of individual criminal responsibility directly under
International Law. Finally, the Charter of the United Nations and its provisions concerning the
enforcement action which may be taken against a State in case of committing a threat to or breaches
of the peace or act of aggression. In the light of these changes, the ILC, in its Draft Articles, adopted
the approach of including international crimes by States within the scope of International Law.
However, because of the controversy concerning this question, the ILC omitted any mention of
international crimes of States in its Articles as finally approved. The ―Articles‖ provides that States
are under a duty to co-operate to bring an end, through lawful means, any serious breach by a State
of an obligation arising under a peremptory norm of International law and not to recognize as lawful
any such situation.
A. The Question of “Immutability”

A State is responsible (liable) only for its own acts or omissions. A State is identified with its
―government‖ which includes the executive, the legislature and the judiciary, and includes central
authorities as well as local authorities.
It is established by the case law that a State is liable for the conducts of any of its organs. This
established rule is reiterated by the ILC ―Articles‖. The ILC ―Articles‖ provides that the conduct of
any State organ (including any person or entity) having that status under the internal law of that
State, whether that organ belongs to the constituent, legislative, executive, judicial or other
authority, whether its functions are of an international or an internal character, and whether it holds
a superior or a subordinate position in the organization of the State, shall be considered as an act of
the State concerned under International Law, provided that organ was acting in that capacity in the
case in question.
The conduct of an organ of a territorial governmental entity within a State shall also be considered
as an act of that State under International law, provided that organ was acting in that capacity in the
case in question. The conduct of an organ of an entity which is not part of the formal structure of the
State or the territorial governmental entity, but which is empowered by the internal law of that state
to exercise elements of governmental authorities, shall also be considered as an act of the State under
International Law, provided that organ was acting in that capacity in the case in question.
It is also established that a State is liable for the acts of its officials if those acts are imputable
(attributable) to the State. This rule depends on the link that exists between the State and the person
or persons committing the wrongful act or omission. The State as a moral legal entity, in reality acts
through authorized officials. It is not liable under International Law for all acts of its officials; it is
liable only for acts of its officials that are imputable to it. Imputability is a legal notion which
assimilates the acts or omissions of the State officials to the State itself and which renders the State
liable for damages to persons or properties resulting from such acts.
The question of ―immutability‖, however, creates problems when officials exceed or disobey their
instructions. Because the evading of liability by a State in such a case will be unjust, it is established
that a State is liable for the acts of its officials, even when they exceed or disobey their instructions, if
those officials are acting with ―apparent authority‖ or if they are abusing ―powers‖ or ―facilities‖
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placed at their disposal by the State. The ILC ―Articles‖ reiterates such a rule by providing that the
conduct of any organ of a State, having acted in that capacity, shall be considered as an act of the
State under International Law even if such organ exceeded its competence according to internal law
or disobeyed instructions concerning its authority.
With regard of wrongful acts committed by private persons, in principle, a State is not responsible
for such acts. However, it is established by case law and reaffirmed by the ILC Articles that a State
is responsible for acts of private persons if those persons are acting on behalf of that state, on its
instructions, under its control, or exercising elements of governmental authority in the absence of
governmental officials and under circumstances which justify them in assuming such authority. It is
also responsible for acts of private persons if such acts are accompanied by some act or omission on
part of the State, for which it is liable. Such act or omission by the State may take one of the
following forms: encouraging the person to perform such act, failing to take reasonable care to
prevent the person from performing such act, failure to punish the person, obtaining some benefit
from the act of the person, or express ratification of the person‘s act.
With regard of actions of rioters or rebels causing loss or damage to a foreign State or its
nationals, the general principle is that the State is not liable for such actions if it has acted in good
faith and without negligence. However, in such a case, the State is under a duty to show due
diligence. Nevertheless, when the rebellion movement succeeds in establishing the new government
of a State or a new State in part of the territory of the pre-existing State, it will be held responsible for
its activities prior to its assumption of authority; this rule is reaffirmed by the ILC Articles.
B. The Question of “Fault”

There are two theories used as foundations for State responsibility: the ―risk‖ theory and the
―fault‖ theory. The ―risk‖ theory is based upon the principle of objective responsibility which
maintains that the liability of the State is strict. Once a wrongful act causing damage has been
committed by a State official or organ, that State will be responsible under International Law to the
injured State irrespective of its intention. In contrast, the ―fault‖ theory is based upon the principle
of subjective responsibility which requires the establishment of an element of intention, fault or
negligence on the part of the State official or organ before rendering the State liable for any damage.
There is no agreement in the International Law on the question of the basis of State
responsibility. The relevant cases and the opinions of legal scholars are divided on this question.
However, the majority of cases and opinions tend towards the ―risk‖ theory of responsibility.
SECTION 2: LEGAL CONSEQUENCES OF STATE RESPONSIBILITY

A State is responsible for its international wrongful act. This responsibility entails certain legal
consequences on that State. The first consequence is the cessation of the wrongful act, and the
second is
A. Cessation of the Wrongful Act

The first legal consequence of State responsibility under International law is that the wrongdoing
State is obliged to cease the wrongful act, if it is continuing, and to offer appropriate assurances and
guarantees on non- repetition.
B. Reparation
The second legal consequence resulting from State responsibility for international wrongful act is
that the wrongdoing state is under a duty to remedy its acts. The injured State is entitled for full
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reparation in form of restitution in kind, compensation and satisfaction, either singly or in
combination. The wrongdoing State cannot employ its internal law to avoid providing full
reparation.
Restitution in kind means that the wrong doing. State has to re-establish the situation that existed
before the committing of the wrongful act. It can be provided if it is not materially impossible, not
involving breach of an obligation arising from a peremptory norm of general International Law, not
involving a burden out of all proportion to the benefit which the injured State would gain from
obtaining restitution in kind instead of compensation, or not seriously jeopardize the political
independence or economic stability of the wrongdoing state.
If restitution in kind is not available, compensation for the damage caused must be paid.
Monetary compensation covers any financially assessable damage suffered by the injured state, and
may include interest, and may include, in certain circumstances, loss of profits. It may be paid for
both material and non-material (moral) damage.
Satisfaction is the third form of reparation. It is a remedy which is appropriate in cases of moral
damage and non-monetary compensation. It may take the forms of an official apology, a nominal
damage, the punishment of the guilty officials or the acknowledgement of the wrongful character of
an act.
SECTION 3: THE IMPLEMENTATION OF STATE RESPONSIBILITY

A State is entitled to invoke the responsibility of another State if the obligation breached is owed
to it individually or to a group of States, including it, or to the international community as a whole
.A State other than an injured State may invoke the responsibility of another State if either the
obligation is owned to a group of States including it, and is established for the protection of a
collective interest of the group, or the obligation breached is owed to the international community as
a whole. In such cases, a State may demand the cessation of the wrongful act, assurances and
guarantees of non-repetition, satisfaction, as well as reparation. These doctrines are reaffirmed in
the ILC Articles.
Where several States are injured by the same wrongful act, each State may separately invoke
responsibility. Where several states are responsible, the responsibility of each may be invoked.
However, responsibility can not be invoked if the injured State has validly waived the claim, or it has
caused, by reason of its conducts, in the lapse of the claim. Any waiver needs to be explicit and
clear.
An injured State may seek to settle its claim peacefully through any of the peaceful means, or it
may take countermeasures against the wrongdoing State. In a case of an injury affecting its national,
the State may provide him with diplomatic protection.
A State may present an international claim against the wrongdoing State before an international
tribunal. However, a State has to establish its qualifications for bringing the claim and the validity of
the claim itself before the merits of the claim can be addressed. Where a claim is brought before an
international tribunal, objections may be raised against its admissibility. The first is an objection to
the jurisdiction of the tribunal; if successful, it will stop all proceedings in the case. Other objections
are the nationality of the claimant, the non-exhaustion of local remedies, and the undue delay in
presenting the claim.
A. Diplomatic Protection and Nationality of Claims

The doctrine of state responsibility with regard to injuries to nationals is based upon the
attribution to one State of the wrongful act or the omission and the capacity of the other State to
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adopt the claim of its injured national. Nationality is the link between the individual and his State as
regards particular benefits and obligations. It is also the link between the individual and the benefits
of International law. Although International Law is now tending to grant certain rights to
individuals apart of the intervention of the State, the basic rule remains that in a State-oriented
world, it is only through the State the individual may obtain the full range of benefits available under
International Law, and nationality is the key.
Although a State is under a duty to protect its nationals, it is not under a duty to provide them
with diplomatic protection. A State may provide diplomatic protection to its nationals. Diplomatic
protection consists of resorting to diplomatic action or other means of peaceful settlement by a State
adopting in its own rights the cause of its nationals in respect of an injury to any of its national
arising from an internationally wrongful act of another State. Such diplomatic protection is not a
right of the national concerned, but a right of the State which may or may not choose to exercise.
The diplomatic protection is the result of the historical reluctance to permit individuals the right
in International Law to bring claims against foreign States, for reasons related to the principles of
state sovereignty and non-intervention in domestic affairs of a State. The exercise of diplomatic
protection is not regarded as intervention contrary to International Law. A State may take up the
claim of its national against another state before an international tribunal. Once a State does this,
the claim then becomes that of the state, not of the injured individuals. Thus, the State may waive
its claim, but the individual cannot.
In International law, the normal and important function of nationality is to establish the legal
interest of a State when its national suffers injury or loss caused by another State. The subject matter
of the claim is the individual and his property, and the claim is that of the State. If the plaintiff State
cannot establish the nationality of the claim, the claim will be inadmissible because of the absence of
the legal interest of the claimant. The ―nationality of the claim‖ principle is well established in
customary International Law. However, there are certain exceptions to the principle of the
nationality of the claim. Examples of such exceptions are the right of protection of an alien seaman
on a ship flying the flag of the protecting State, an alien in the service of the armed forces of a
claimant State, and stateless person or refuge who at the dates of the injury and presentation of the
claim is lawfully and habitually resident in that state.
The nationality must exist at the date of the injury, and should continue until at least the date of
the formal presentation of the claim. Where an individual possesses dual or multiple nationalities,
any State of which he is a national may adopt his claim against a third State. Where a case involves
more than one State of nationality, the State with which he has the more effective connection may
adopt his claim against the other State. As far as a moral legal person (such as a corporation) is
concerned, there must be some tangible link between it and the State adopting its claim.
B. The Exhaustion of Local Remedies

It is established in the customary International Law that before international proceedings are
instituted or claims or representations made, the remedies provided by the local State should have
been exhausted. This rule implies that an injured individual must exhaust remedies in the courts of
the defendant State before an international claim can be brought on his behalf. It is a rule which is
justified by political and practical considerations, not by any logical necessity deriving from the
International Law.
Among the political and practical considerations suggested to justify such rule are the avoidance of
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resorting to diplomatic protection in small and insignificant claims, and the greater suitability and
convenience of local courts as forums for claims of individuals. This rule is reaffirmed in the ILC
Articles which provides that the responsibility of a State may not be invoked if the claim is one to
which the rule of exhaustion of local remedies applies and any available and effective local remedy
has not been exhausted.
The exhaustion of local remedies rule does not apply where one State has been guilty of a direct
breach of International Law causing direct injury to another State. It applies to cases of diplomatic
protection where a State claims injury to its nationals, and when effective remedies are available in
the wrongdoing State. A claim will not be admissible in the International Law unless the natural or
legal foreign person concerned has exhausted the legal effective remedies available to him locally in
the defendant State.
C. Unreasonable Delay and Improper Activities of the Injured National

A claim by a State against another State will not be admissible if it is presented after an
unreasonable delay by the claimant State. It may be inadmissible if the injured national has suffered
injury as a result of his improper activities. However, in such a case, the injury suffered by the
national must be roughly proportional to his improper activities.
D. Resorting to Countermeasures
An injured State may seek to settle its claim peacefully through any of the peaceful means, or
it may take countermeasures against the wrongdoing State. Countermeasures are acts of retaliation
which are traditionally known as ―reprisal‖. They may be in a form non-compliance of the injured
State with its legal obligations towards the wrongdoing State, or unilateral coercive actions taken by
the injured State against the wrongdoing State. Such measures are a type of self help utilized in
order to induce the wrongdoing State to discontinue its wrongful act and to provide reparation.
Today, there are certain legal limits to countermeasures. The most important limit is the
prohibition of the armed retaliations because of the general prohibition of the use of force provided
in Article 2(4) of the Charter of the United Nations. Countermeasures have to be proportional to the
wrongful act. They must not violate basic human rights or the peremptory norms of International
Law.
IS INTERNATIONAL LAW A TRUE LAW?

Is International Law a true law: There is one theory that International Law does not qualify as
true law but it is just a moral force.
Austin’s view: Austin and Thomes Hobbes insist that law is the command of a determinate superior
and that constantly no law can exist where there is no supreme lawgiver and no coercive
enforcement. If there is no sovereign authority then the rules could not be legal rules but rules of
moral or ethical validity.
Positive morality: Austin and his subscribers say that it is not true law but positive international
morality or rules of conduct of moral force only, for there is not supreme lawgiver and no coercive
enforcement in it. In that time Austin was rigid. International Law is not a true law but in this time
International Law is part of our law, and must be administrated by the courts of justice of
appropriate jurisdiction.
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REPLY TO AUSTIN’S VIEW: The reply to Austin’s view is as follows:

1. Choice to a penal statute: As Hert points out that the Austin‘s theory of law approximates closer
to a penal statute enacted by the legislature of a modern state than to any other variety of law.
2. System of law, without a formal legislature: Modern historical jurisprudence has discounted the
force of his general theory of law. It has been shown that in many communities, system of law as in
force and being observed, without a formal legislative authority. Such law did not differ in its
binding force from the law of any state with a true legislative authority.
3. Questions of International Law: Questions of International Law are always treated as legal
questions by those who conduct international business and are regularly stated in legal terms and
interpreted by legal methods.
Almost from the early stages of the development of the science of the Law of Nations the question
whether International Law is law in true sense has been a subject of much speculation. Has it
binding force opinion sharply been divided on this vexed (disturbed) question?
A constantly evolving body of norms: International Law is a constantly evolving body of norms
that are commonly observed by the members of international community in their relations with each
other for providing an orderly management of international relations.
Whether International Law qualifies as law or not - choice of the definition of law: Whether or
not one wishes to attribute a legal character to the norms of International Law depends largely upon
the definition of law he chooses to accept.
This question has been matter of discussion since long whether it is law? Some writers object the use
of word ―law‖. They say that states are free from external pressure. If they consent to follow the
principles of International Law, it does not mean they are debarred from their sovereign powers. It
does not affect their sovereign powers. In the opinion of some writers law is the name of rule which
every superior issues for inferior.
This rule binds the people to prepare its structure. Its compliance would be compulsory and its
violation will result in punishment. There is no such compulsion in International Law. In
International Law there is not sovereign power that issues orders. If there is any sovereign power in
International Law, the sovereign power of the states will be lost.
There is no binding force behind it. It is not doubtful, that states observe the rules and regulations in
the compliance of international contracts with the feeling of betterment and ethics. These rules and
regulations are decided in their limits and are liable to revoke. There is no law force, which can stop
them in doing such act.
International Court of Justice is a forum where states bring their disputes for settlement but states are
no more bound to accept them and may refuse. It all depends upon them. There is no forum for its
explanation or interpretation. There is no concept of legislature in International Law for the
enactment and enforcement.
In the opinion of different writers International Law is not real law. According to Austin it has status
of positive international morality. It is a collection of emotions of people and common opinions.
MERITS OF INTERNATIONAL LAW: Presently an International Law is very important for

every state. In past there were some problems between states but at present it is very important and
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all states feel that it should remain there.
1. Protection of states’ interests: It is doubtless that International Law has protected the interests of
the states. It helps those states, which have no such power to protect their interests. It also protects
states from suffering of loss. It provides them rules and regulations for which states are bound to
follow. It relates with the boundaries, society, morality, ethics, and religious matters. Kuwait was
protected by International Law.
2. Welfare of human being: In fact International Law plays an important role in the welfare of
human being. Submission of these rules brings prosperity for humankind. It has different institution,
which perform its functions.
3. Equality: International Law gives importance to equality. It gives the same status of equality to
small state as the big state. In international relations all are equal. One state has no superiority over
other one. In international matters, every state plays its role.
4. Individuality: International Law also gives individual importance to each state. All the other
states also recognize it. International Law has covered almost all the world and formed a society and
promoted brotherhood. Individuality has importance in it.
5. Unity and strength: This law has created the environment of the unity and strength among the
different states. It has taken all the states in a line. No one state can separate her from others. Every
state has become the need of other one and plays an important role in unity and strength.
6. Development of social values: This law has also played an important role in the development of
social values. International Law has tried best to promote the social values.
DEMERITS OF INTERNATIONAL LAW: It has also some demerits as well as merits, which
make it weaker. These demerits are as follows:
1. Limited scope: In the present circumstances it seems ambiguous and of limited scope. There is no
solid organ of International Law, which can resolve the matters of states equitably. It could not
devolve person into state.
2. Ambiguous law: Some of its rules and regulations are not only uncertain but also ambiguous.
Pace of its development and promotion is deadly slow. It cannot combat with changing environment
of the society.
3. No apparent authority: There is not executive class who can enforce the laws. It lacks the force of
law, which enforces the law, and gets exercised. Only International Court of Justice exists. There is
not existence of special courts that can decide the particular disputes. International Court of Justice
cannot settle certain matters. States do not allow International Court of Justice in the settlement of
disputes. After the decision is given, there is no such power that may get it enforced.
4. No administration power: There is no administrative power behind it that can get its decisions
enforced.
5. Little enactment: It has little room of enactment. Mostly matters such as excise, intercourse
between two or more states, taxes, and market etc. are excluded from its scope.
6. Non interference: International Law does not intervene in the matters, which takes place in any
member state.
7. Uncertainty about facts: There may be a genuine uncertainty about the facts. For instance, before
one who decide whether United States participation in the Vietnam fighting is legal or illegal, has to
decide whether the National Liberation Front (Viet-cong) in South Vietnam represents spontaneous
internal revolt or whether it represents subversion from North Vietnam.
8. Uncertainty about law: There may be a genuine uncertainty about the law. For instance, some
states think it is lawful to nationalize foreign property without compensation, others disagree. When
dispute arises between a state in the first group and a state in the second group, each will be
convinced that it is in the right, and it is impossible to predict how an international Court would
decide the case.
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9. Internal disintegration: Sometimes international dispute may cause internal disintegration such
as demand for the increase of wages in employment. However wages are fixed by the contract of
employment and contracts can be altered by mutual agreement.
10. Unfriendly legal act: International Law does not prevent a state increasing its tariffs on goods
coming from another state, even though the result may be to cause severe unemployment in the
other state.
11. Dualism: Dualism can easily be observed in the solution of the international disputes. Dispute of
North Tamour has been solved whereas dispute of Kashmir stands unresolved. Terrorism in Israel
has not been condemned while liberation struggle of Palestine is condemned.
It is weaker law in the eyes of J. G. Starke. Another writer says that it is not only a weaker law but it
contains mostly on customary law.
Despite the existence of International Court of Justice many hurdles came in its development. This
law does not resolve the disputes.
How it can grow: Following are the some suggestions, which can determine its pace:
1. Rules and regulations of this law should be revised and taken into writing.
2. It should be given the form and shape as the ordinary law of the state.
3. It should be formed globally.
4. It should be developed through courts.
Many activities are being taken place in this regard. Conferences and other important treaties are
playing an important role in its growth. Changing political environment and expertise are trying in
changing the International Law. Also courts are playing important role for its development.
Present day International Law: Austin‘s views however rigid for his time are not true of present day
International Law. In 20th century a great mass of ―international legislation‖ has come into
existence as a result of law making treaties and conventions.
Procedure for formulating rules: The procedure for formulating the rules of international legislation
is practically as settled if not as sufficient as any state legislative procedure.
Conclusion: International Law is law but a weak one, the cumulative evidence against the position
taken by Austin and his followers should not bind us to the fact that International Law is a weak
law.
Its enforcement devices: It is obvious that there are gaps and ambiguities in the law, that its
enforcement devices are often inadequate and it has not succeeded in eliminating the use of force in
international relations.
There is no world legislature, no international police, and no international Court with compulsory
jurisdiction.
HISTORIC BACKGROUND OF INTERNATIONAL LAW: It has not certain period of its

beginning. It is explored that it came into existence right from the commencement of human life on
earth. States had established mutual relationship and played an important role in social life.
International Law has been developing time to time and its form has been changing with the passage
of time.
In thirteenth century B. C. a contract took place between Egyptian King Pharaoh and Syrian King
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after a war. It was consisted on the conditions of peace and co-operation and land acquisition. It was
written on a silver plate. It reveals that no doubt this system was available since long before and
states were made treaties as the same now is. In old time there was neither travelling arrangements
nor concept of states, but agreements were made. There was also diplomatic representation.
Disputes were settled with arbitration. There was tradition of asylum in that age.
Greek period: Greek nation was reluctant to maintain relationship with non-Greeks. They were
habitant to make slaves others. They had thought that only Greeks are born to be rulers. In words of
Aristotle, ―nature has created non-Greeks only for to be slaves.‖ States either democratic or imperial
had mutual relationship and rules and regulations among them. Mostly matters were decided with
arbitration. They were not remain civilized but became cruel during war. War was not started
without declaration. Religious places were not destroyed. Killed/deceased people were buried.
Prisoners of War were exchanged. They had formed Greek union of nations. In that age treaties
were made. Such like states may enjoy peace and prosperity.
Roman period: Till 753 B. C. states were not too big. International Law was clarified till 3rd century
B. C. after the evaluation of big state founded. Relations were developed with Persia while making
the treaties with others. Roman were taken into consideration the principles set out by that former
states and they provided the legal protection. They made a treaty for common defence of states.
Non-member states could not enjoy such facility. War was formerly declared. Treaties were taken
into consideration without which existence was impossible. Principles they had formed played an
important role in International Law even today.
Jews’ period: Jews were considered superior themselves than others. They had superior standard
than others. They had treated other inferiors. That‘s why they did not contributed in the
development of International Law. They were severe enemy of many nations. During the peacetime
they had not good moral character. They had bad treatment for others during warfare. They were
killed children and aged people. They had good relationship with alien friends. They had respect for
diplomatic representatives. Their national law was applied in the territory of subjugated (beaten)
country. Agreements were made at the end of war.
Indian period: Historic period of India begins since thousand years‘ back. Age of Raja Geet is
supposed with Alexander the Great. Brahmans, Khashtari, Waish, and Jain were also Hindus. They
had mutual co-operation. They had good relations among themselves. Agreements were made in
that age.
THREE STAGES OF THE DEVELOPMENT OF INTERNATIONAL LAW: Development of

International Law is observed into three ages. Its roots are found in the beginning of history of
human life. But its clear form is 400 years old. A writer has divided its development in three stages.
First period: First period of International Law is started right from the beginning of human history
and ends at formation of Roman empire. In this period there was respect of same race and same
religion. For the achievement of peace, ambassadors were sent. They had certain immunities. They
were not treated enemy but friend and had better relations. Romans applied rules relating with peace
and war. War was ceased upon the peace and friendship. Tradition of internationalism became
ceased after the fall of Roman Empire. Geographic boundaries were not defined. They were united
upon common race. Kings were the rulers over certain territories. Same principles of International
Law had been developed in this age.
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Second period: In this age religious movements came into force. They left certain effects. They
emphasized on the importance of International Law.
Roman Empire: Second era was started with the creation of Roman state. It was spreaded over the
large part of the world. Need for the importance of International Law became end. Off and on any
incident took place which showed the importance of International Law. According to the law of
Rome, agreements were made and protected. In the failure to become friend, they were made slaves.
Christian influence: Christian religion gone to Italy. It became official religion of Italy State. This
era eliminated the question of International Law. Continuous crusades were started. They treated
Muslims their great enemy. Their revenge passions grown up after the concurrence over Bait-ul-
Maqdas of Muslims. Christian priests declared all the agreements prohibited with Muslims from
religious point of view. The crusades were remaining in operation till long. Despite of the fact,
agreements were made. In that age, there was also trend toward International Law.
Islamic influence: After the dawn of Islam, complete change took place. Infidels started harassment
to HazratMuhammad . In these circumstances they migrated from Makka to Madina. They founded
state, which became first Islamic State over the global map (Atlas). They fought many wars.
Muslims were martyred and concurred. Moral values were taken into consideration. Killing of
women, children, and aged people, if they remain peaceful, transgression of limits, devastation of
crops, destruction of buildings and houses, ruin of gardens, killing of animals, and arson of public
places became prohibited. Weaker people were remitted. Muslims were spreaded over from east to
west.
Hazrat Muhammad said in his Tradition, ―O people you are followers of one Allah and are progeny
of Adam. The best among you is who refrains from evils‖. All the Muslims are brothers. An Islamic
state act upon the light of Quran. They do not discriminate, the matters of the world and hereafter.
Islam has made all the principles. Islam is code of life and teaches us in all spheres of life. Islam has
also clarified the International Law. Western writers have negated the importance of Islam in the
development of International Law. The period of Muslims was so brilliant.
Third period: There was a long war between king and church. German king created a big state. In
an agreement Pope took over the matters of religion and secular matter left for king. Despite of this
agreement the war period remains continue. In fifteenth century Pope became weaker. In
seventeenth century many small states came into existence that made mutual treaties. Despite of war
many contracts and peace pacts took place.
INTERNATIONAL LAW: International Law is the law, which governs the relations among states
and other international legal persons. The sources of International Law are customs grown up
among states and lawmaking treaties concluded by them. International Law regulates relations
between states.
International Law is a law not above but between sovereign states and it therefore a weaker law.
Municipal law: Municipal law is the law of a state, which governs the domestic affairs of the state.
The sources of Municipal Law are customs grown up within the boundaries of the state concerned
and statutes enacted by the law giving authority.
Municipal Law regulates relations between the individuals under the sway (influence) of a state and
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the relations between the state and the individual.
Municipal Law is a law of a sovereign over individuals subjected to his sway.
Relationship between International Law and municipal law: There are certain questions which
come before international lawyer whether what are nice considerations between international and
municipal law. The most important practical problem of more immediate concern to municipal
courts are as to what extent may courts give effect International Law in municipal courts both where
such rules are, and where they are not in conflict with municipal law. It is a practical problem,
which requires consideration of the practice of states.
It is the practice of national courts that the relationship of international law to municipal law is of
fundamental importance which means that to what extent they are interrelated with each other, or
where they conflicts which will be preferred or the system are to oppose or to coordinate with each
other.
Theories in this respect: There are two theories as to relation between International Law and
municipal law, i.e., dualism and monism.
DUALISM: In nineteenth and twentieth centuries philosophers emphasized on the sovereignty of

the state-will and the complete system of legislation in a state. It has developed that trend toward the
duelist view. According to dualistic both international and municipal law are distinct systems. There
are two basic differences between the two systems:
1. Subject of law: In state law subjects are individuals whereas states are solely and exclusively
subjects of International Law.
2. Juridical origin: In state source of law is will of the individuals for which they are concerned
while in international source of law is common will of the states concerned.
Distinct legal systems: According to dualism, these two systems are entirely distinct legal system,
international law having an internally different character from that of state law.
Chief exponents of the theory: The chief exponents of dualism have been the modern positivist
writers Triepal and Anzilotti.
Anzilotti’s view: Anzilotti distinguished international law and state law according to the
fundamental principle by which each system is conditioned in his view.
State law is conditioned by the fundamental principle or rule that state legislation has to obey, while
International Law is conditioned by the principle ―pactasuntservanda‖. It means that agreements
between states are to be respected.
International Law binds individuals and entities other than states. B section is something misleading
to the extent of the superior state in International Law. Superior has definitely dominant role in
International Law despite the common will of the states.
State law is based upon the principle and norm, which sates legislation, has to be obeyed. In
International Law main principle is agreements between states that are to be respected. Thus the two
systems are entirely different. This theory not only has received support from positivists but non-
positivists writers and jurists. State law mainly is consisted on judge made law and the statutes
passed by legislature whereas International Law is comprised on the customary rules and treaties
among the states.
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Monism: This is strictly scientific analysis. It is single unity composed of binding legal rules whether
those rules are obligatory on states, on individuals, and on entities other than states.
If it is generally accepted that International Law is a true law then there is no doubt to deny that the
two systems constitute part of that unity.
Kelson’s view: In the view of Kelson and other monist writers, there cannot be any escape from the
position that the two systems, because they are both systems of legal rules, are interrelated parts of
one legal structure.
STATE’S RESPONSIBILITY TO ENFORCE INTERNATIONAL LAW: It is the duty of state to

enforce the International Law as the state law in its jurisdiction.
MORTENSON V PETERS: In this case High Court of Scotland gave effect to a municipal law
against the International Law but the state was under obligation to conform the International Law,
therefore, the executive in fact demolished the judgement in order to make Britain‘s behavior
conform with her international obligation.
QUESTION OF PRIORITY: Monists are somewhat divided on this point whereas dualists assert
that the two systems are not to supersede, but to coordinate with each other, therefore, there arises
no conflict between the two.
Practice as to priority - case before International Tribunal: When the case in which conflict arises
between International Law and municipal law before an International Tribunal, the practice is to
prefer the International Law over the municipal law.
Practice as to priority - case before Municipal Court: Where conflict arises in a case before a
municipal Court (except where the state has adopted the International Law to supersede, by
constitution or law), the municipal law is preferred.
INTERNATIONAL CRIMINAL LAW

International Criminal Law is a body of international rules which, on one hand, prescribes
international crimes and imposes upon States the obligation to prosecute and punish at least some of
these crimes, and, on the other hand, regulates international proceedings for prosecuting and trying
persons accused of such crimes. It is a relatively new branch of Public International Law. Its rules
have come into being by gradual accretion. It consists of two parts, ―substantive criminal law‖ and
―procedural criminal law‖.
“Substantive criminal law‖ is the set of rules indicating what acts constitute international crimes,
as well as on what conditions States may and must, under International Law, prosecute or bring to
trail persons accused of one of these crimes. ―Procedural criminal law‖ is the set of rules regulating
the various stages of international trials for the prosecution of accused criminals.
The substantive and procedural rules of International Criminal Law are found, mainly, in the
various treaties of the International Humanitarian Law, and in various statutes of international
criminal tribunals.
Examples of the relevant treaties of International Humanitarian Law are:

the 1899 and 1907 Hague Conventions, the four 1949 Geneva Conventions,
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the two 1977 Additional Protocols to the Geneva Conventions,
the various treaties prohibiting the use of certain weapons, and the various treaties related to certain
international crimes such as the 1948 Convention on Genocide,
the 1984 Convention against Torture,
and the various treaties on terrorism.
Examples of the statutes of various international criminal tribunals are: the 1945 Statute of the
International Military Tribunal for the Major War Criminals at Nuremberg (IMT),
the 1946 Statute of the International Military Tribunal for the Far East (IMTFE),
the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), the 1994
Statute of the International Criminal Tribunal for Rwanda (ICTR), and the 1998 Statute of the
International Criminal Court (ICC).
International Criminal Law has established individual responsibility, with criminal sanctions,
for non-observance of the rules of International Humanitarian Law. This responsibility applies to
each individual, who must answer for his conduct, even when acting on orders from a superior. A
superior is liable to criminal prosecution. The Head of State may have to answer for his actions.
The rules of the International Criminal Law will be the subject of the following sections: The
first section will deal with international crimes; and the second section will deal with the prosecution
and punishment of international crimes by national courts as well as by international tribunals.
SECTION 1: INTERNATIONAL CRIMES

International crimes are breaches of international rules entailing the personal criminal liability of
individuals concerned. They are crimes of concern to international community as a whole. The list
of international crimes, acts which are prohibited under International Law and which makes their
authors criminally liable, has come into being by gradual accretion.
Traditionally, in the Seventeenth to the Nineteenth Centuries, piracy was considered an

international crime. Apart of this traditional crime, initially, in late Nineteenth Century only war
crimes were considered international crimes and were punishable. It is only since the Second World
War that new categories of international crimes have developed.
The 1945 Statute of the International Military Tribunal for the Major War Criminals at Nuremberg
(IMT) and the 1946 Statutes of the International Military Tribunal for the Far East (IMTFE) added
new classes of international crimes to ―war crimes‖, namely ―crimes against humanity‖ and ―crimes
against peace‖. ―Crime of genocide‖, which was considered as a special subcategory of crimes
against humanity, became an autonomous class of crime in 1948, when the General Assembly of the
United Nations adopted the Genocide Convention.
―Wars of aggression‖, which were one of the subcategories of the broad category of ―crimes against
peace‖, themselves became a category of international crimes replacing what was known as ―crimes
against peace‖ when the G.A adopted its Resolution on the Definition of Aggression in
1974. Recently, acts of international terrorism have been added as a distinct international crime.
The contemporary list of international crimes is formulated in the 1998 Rome Statute of the
International Criminal Court (ICC). Article 5 of the Statute lists the international crimes over which
the Court has a jurisdiction as the following:
(1) The crime of genocide;
(2) Crimes against humanity;
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(3) War crimes; and
(4) The Crime of aggression.
1. The Crime of Genocide

―Genocide‖ is the intentional killing, destruction, or extermination of groups or members of a
group as such. The ICC Statute defines ―genocide‖ to mean any of the following acts committed
with intend to destroy, in whole or in part, a national, ethnical, racial or religious group:
(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent birth within the group; and
(e) Forcibly transferring children of the group to another group.
2. Crimes against Humanity

―Crimes against humanity‖ are odious offenses that constitute a serious attack on human dignity
or a grave humiliation or degradation of one or more human beings, committed as part of either of a
governmental policy, or of a widespread or systematic practice of atrocities tolerated, condoned, or
acquiesced in by a government or a de facto authority. The acts which constitute such crimes are
prohibited and punishable, whether they are committed in time of war or peace. The victims of such
crimes may be civilians or enemy combatants.
The ICC defines ―crime against humanity‖ to mean any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of
the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of International law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender, or other grounds;
(i) Enforced disappearance of persons;
(j) The crimes of apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
3. War Crimes
War crimes are serious violations of customary or treaty rules belonging to International
Humanitarian Law or the Law of War (the body of substantive rules comprising ―the Law of the
Hague‖ and ―the law of Geneva‖). They may be committed in the course of either international or
internal armed conflicts. They may be committed by military personnel against enemy servicemen or
civilians, or by civilians against members of the enemy armed forces or enemy civilians.
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The ICC Statute provides that the Court shall have jurisdiction in respect of war crimes in
particular when committed as a part of a plan or policy or as part of a large-scale commission of
such crimes. According to this Statute, ―War crimes‖ means:
(a) Grave breaches of the 1949 Geneva Conventions, namely any of the acts against protected
persons or property such as willful killing, torture or inhumane treatment, unlawful deportation or
transfer or unlawful confinement, taking hostages, and extensive destruction and appropriation of
property not justified by military necessary.
(b) Serious violations of the laws and customs applicable in international armed conflicts or in
armed conflicts not of international character, within the established framework of International
Law, namely such as acts committed against the life and dignity of persons; intentionally directing
attacks against civilians, civilian population, civilian objects, or against personnel, installations,
material, units or vehicles involved in humanitarian assistance; killing or wounded a surrendering
combatant; or employing prohibited weapons.
4. Crimes of Aggression
The 1974 General Assembly Resolution on the Definition of Aggression provides that aggression
is the use of force by a State against the sovereignty, territorial integrity or political independence of
another state, or in any other manner inconsistent with the Charter of the United Nations.
Accordingly, ―war of aggression‖ is a crime against International Law which gives rise to
international responsibility. Crimes of aggression comprise the following:
(a) The invasion of or the attack by the armed forces of a State on the territory of another State,
any military occupation, or any annexation by force of the territory or part of the territory of another
State;
(b) Bombardment, or use of any weapon , by the armed forces of a State, against the territory of
another State;
(c) Blockade of the ports or coast of a State by the armed forces of another State;
(d) Attack by the armed forces of a State on the land, sea, or air forces of another State;
(e) The sending by or on behalf of a State of armed bands, group, irregulars, or mercenaries,
which carry out acts of armed force against another States.
SECTION 2: PROSECUTION OF INTERNATIONAL CRIMES

The Prosecution of individuals committing international crimes has undergone a significant
development throughout History; prosecution exclusively by national courts to possible prosecution
by international courts, whether ad hoc or permanent.
A. Prosecution by National Courts to Prosecution by Ad Hoc International Tribunals
Traditionally, individuals have been subject to the exclusive jurisdiction of the State on whose
territory they live. Their Violations of international rules were prosecuted and punished by the
competent authority of the State where the acts of violations had been committed. However, such
prosecution and punishment were not possible unless the State was authorized to do so under its
own national law, and it was willing to proceed. If no prosecution and punishment had happened,
then the State, victim of the violation or of which the victim had its nationality, was entitled to
international claim against the delinquent State, which had either to punish the perpetrators or pay
compensation.
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In such case, what was involved was the responsibility of the State. State responsibility was founded
on its failure to prosecute and punish the perpetrators. Notably, it is necessary to mention that if a
wrongful act had been committed by a State official in his official capacity, he was entitled abroad to
immunity form jurisdiction (prosecution and punishment).
However, few exceptions to the above tradition existed. One of the exceptions was ―piracy‖, a
practice which was widespread in the Seventeenth and Eighteenth Centuries. ―Piracy‖ was
considered an international crime. ―Pirates‖ were regarded as enemies of humanity because they
hampered the freedom of the high sea and infringed private property. So all States were empowered
to search for, prosecute and punish pirates, regardless of the nationality of the victims and of
whether the prosecuting State had been affected by piracy.
Another exception was ―war crimes‖, which gradually emerged as international crimes in the
second half of the Nineteenth Century. Traditionally such crimes were defined as violations of the
laws of warfare committed by combatants in wars (international armed conflicts). Individuals acting
as State officials, chiefly low-ranking members of the armed forces, could be prosecuted and
punished for violations of the laws of warfare. They could be prosecuted and punished, not only by
their own States, but also by the enemy State.
Actually, the exceptional character of war warranted this deviation from the traditional rule, namely
the immunity of State‘s officials from the jurisdiction of foreign States. For many years adversary
States prosecuted and punished the alleged perpetrators of war crimes on the basis of the principle of
―passive nationality‖ (the nationality of the victim), which entitles a State to exercise jurisdiction
over crimes committed against its nationals.
After the First World War, the Allied Powers prosecuted and punished those guilty of war crimes
either on the basis of the principle of territoriality that entitles the State to exercise jurisdiction over
crimes committed on its territory, or on the basis of passive nationality; in this later basis it was
sufficient for the victim to have the nationality of any of the Allied Powers.
The creation of the International Military Tribunal for the Major War Criminals (IMT) and the
International Military Tribunal for the Far East (IMTFE) in 1945 and 1946 respectively, and the
subsequent trails at Nuremburg and Tokyo of the German and Japanese war criminals, marked a
crucial turning point with regard to international crimes.
Two new categories of international crimes were emerged: crimes against peace and crimes against
humanity. State senior officials, high ranking military officers, politicians and high ranking
administrators, who were until 1945 protected by State sovereignty, became personally responsible
for their wrongdoings. They could be prosecuted by international tribunals as well as by foreign
States who could also punish them.
With the adoption of the Geneva Conventions in 1949, further important advances occurred as
regards international criminal law.New groups of war crimes were added, namely ―grave breaches of
the Geneva Conventions‖. An advanced system for repressing violations by States was set up. The
principle of universality of jurisdiction was laid down, according to which a contracting State could
prosecute an accused person held in its custody regardless of his nationality, of the nationality of the
victim, and of the place where the alleged violations had been committed.
With the adoption of the Protocol II Additional to the 1949 Geneva Conventions in 1977, and the
creation of the two ad hocinternational tribunals, the International Criminal Tribunal for the former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994
respectively, a significant evolution of International Criminal Law took place. The notion of war
crimes was extended to include serious violations of international humanitarian rules governing
internal armed conflicts. Violators of these rules could be prosecuted by international tribunals.
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A further significant evolution of International Criminal Law finally took place with the adoption
of the Statute of the International Criminal Court (ICC) in 1998. The ICC was established as the
permanent international court for international criminal justice, and complementary to national
courts. An almost comprehensive list of international crimes was formulated.
The apparent feature of International Criminal Law today is the possibility of prosecution of
international crimes by national courts as well as by international tribunals, whether ad hoc tribunals
or the International Criminal Court (ICC). In the following subsection, we will deal with the
prosecution by the ICC.
B. Prosecution by the International Criminal Court (ICC)
The attempts to establish a permanent international criminal court for the prosecution of
individuals committing international crimes succeeded when on 17 July 1998 the Statute of the
International Criminal Court (ICC) was signed at Rome. The ICC is established as a judicial organ
of universal jurisdictional reach; thus, it is potentially able to respond to violations occurring
anywhere. Its seat is established at The Hague in the Netherlands.Its relationship with the United
Nations shall be governed by the agreement approved by the Assembly of States Parties to its Statute
and thereafter concluded by the president of the ICC on its behalf. Its jurisdiction and functioning
are governed by the provisions of its Statute.
The Statute of the ICC provides that the Court shall have international legal personality, and that
it shall also have such legal capacity as may be necessary for the exercise of its functions and the
fulfillment of its purposes. The court may exercise its functions and powers, as provided in its
statute, on the territory of any state party and, by special agreement, on the territory of any other
State.
According to the Statute of the ICC, the Court is a permanent criminal court that has the power
to exercise jurisdiction over persons committing the most serious crimes of concern to the
international community as a whole, namely
(a) The crimes of genocide;

(b) Crimes against humanity;
(c) War crimes; and
(d) The crime of aggression.
The ICC is complementary to the national criminal jurisdictions. National courts enjoy priority in
the exercise of jurisdiction over persons committing international crimes except under special
circumstances, when the ICC is entitled to take over and assert its jurisdiction. The ICC is barred
from exercising its jurisdiction over crimes whenever a national court assets its jurisdiction over the
same crime and
(1) under its national law the State has jurisdiction,

(2) the case is being duly investigated or prosecuted by its authorities or these authorities decided, in
a proper manner, not to prosecute the person concerned, and
(3) the case is not of sufficient gravity to justify action by the ICC.
In addition, the ICC may not prosecute a person whom already been convicted of or acquitted for
the same crimes, if the trail was fair and proper.
Nevertheless, the ICC is authorized to exercise its jurisdiction over a crime even if a case concerning
that crime is pending before national authorities, and thus to override national criminal jurisdiction,
whenever:
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(1) the State is unable or unwilling to carry out the investigation or prosecution the person
concerned, and
(2) the case is of sufficient gravity to justify the exercise of the ICC jurisdiction. A State is ―unable‖
when, because of a total or partial collapse of its judicial system, it is not in a position to detain the
accused person, or to carry out criminal proceedings.
A State may be considered as “unwilling” when:

(1) in fact the national authorities have undertaken proceedings for the purpose of shielding the
concerned person from criminal responsibility,
(2) there has been an unjustified delay in the proceedings showing that in fact the authorities do not
intend to bring the concerned person to justice, or
(3) the proceedings are not being conducted independently or impartially or in any case in a manner
showing the intend to bring the person to justice.
The ICC may exercise its jurisdiction with respect of any international crimes if such a crime is
referred to the Prosecutor of the ICC by a State Party to the Statute, or by the security Council acting
under Chapter VII of the Charter of the United Nations, or if the Prosecutor has initiated an
investigation in respect of such a crime.
A State Party may refer to the Prosecutor a situation in which one or more crimes within the
jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more specific persons should be charged
with the commission of such crimes. The Prosecutor may initiate investigation based on information
on crimes within the jurisdiction of the Court.
According to the Statute of the ICC, the Court has a jurisdiction over natural persons who
commit crimes within its jurisdiction. A person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person: commits such a crime;
orders, solicits or induce the commission of such a crime; facilitating the commission of such a
crime; contributing in any way to the commission or attempted commission of such a crime; or
attempts to commit such a crime.
Criminal responsibility and liability under the Statute of the ICC shall be applied to all persons
without any distinction based on official capacity. In particular, official capacity as a Head of State
or Government, a member of a Government or parliament, an elected representatives or a
government official shall in no case exempt a person from criminal responsibility under the Statute,
nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities or special
procedural rules which may attach to the official capacity of a person, whether under national or
International Law, shall not bar the Court from exercising its jurisdiction over such a person.
According to its Statute, the ICC may impose the following penalties:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment.
In addition to imprisonment, the Court may order: (a) A fine; or (b) A forfeiture of proceeds,
property and assets derived directly or indirectly from that crime.
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EXTRADITION & INTERVENTION

EXTRADITION DEFINED BY LAWRANCE: Lawrance defines extradition as ―the surrender by
one state to another of an individual who is found within the territory of the former and is accused of
having committed a crime within the territory of the latter.
L. Oppenheim: ―Extradition‖ is the delivery of an accused or a convicted individual to the state on

whose territory he is alleged to have committed, to have been convicted of, a crime, by the state on
whose territory the alleged criminal happen to be for the time being.
J. G. Starke: The term ―extradition‖ denotes the process whereby one state surrenders to another
state at its request a person accused or convicted of a criminal offence committed against the laws of
the requesting state, such requesting state being confined to try the alleged offender.
A criminal may take refuge in a state which has no jurisdiction to try him, or in a state which is
unable or unwilling to try him because all the evidence and witnesses are abroad. To meet this
problem, International Law has evolved the practice of extradition, individuals are extradited, i.e.,
handed over, by one state to another state, in order that they may be tried in the latter state for
offences against its laws. Extradition also includes the surrender of convicted criminals who have
escaped before completing their punishment.
Object of extradition: Since extradition is the delivery of an accused or convicted individual to the
state on whose territory he is alleged to have committed, or to have been convicted of, a crime, by
the state on whose territory he happens for the time to be. The object of extradition can be any
individual, whether he is a subject of the prosecuting state, or of the state which is required to
extradite him, or of a third state.
Extradition in the absence of an extradition treaty: Following rules govern extradition in the
absence of extradition treaty:
Reciprocity or courtesy: In the absence of a treaty or statute, the grant of extradition depended
purely on reciprocity or courtesy. No government is understood to be bound by positive law of
nations to deliver up criminals and fugitives from justice who have sought an asylum within its
limits.
COMMON RULES: Following are the common rules, which govern the extradition in absence of
an extradition treaty:
1. Extraditable persons: There is uniformity of state practice to the effect that the requesting state
may obtain the surrender of its own nationals or nationals of a third state. But most states usually
refuse the extradition of their own nationals who have taken refuge in their territory, although as
between states who observe absolute reciprocity of treatment in this regard, requests for surrender
are sometimes acceded to.
2. Extraditable crimes: Serious crimes generally, states extraditing only for serious crimes, and there
is an obvious advantage in thus limiting the list of extradition crime since the procedure is so
cumbrous (huge, heavy) and expensive.
3. Special principle: This means that an extradited person cannot be tried for a crime other than that
for which he was extradited, until he has been given a chance to leave the country to which he was
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extradited.
4. Definition of extraditable offences: Extradition is usually confined to serious crimes, which must
also be crimes under the law of both of the states concerned (double criminality principle). This
object can be met in one of two ways. First, the treaty may apply to all crimes, which are punishable
in both countries by so many months or years of imprisonment. Alternatively, the treaty may list the
extraditable offences by name.
Exempted offences: As a general rule, the following offences are not subject to extradition
proceedings:
(1) Political crimes.
(2) Military offences, for example, desertion (escape).
(3) Religious offences.
5. Principle of specialty: This principle means that the requesting state is under a duty not to punish
the offender for any other offence than that for which he was extradited. This principle is approved
by the Supreme Court of the United States. In Great Britain its application is a little uncertain.
6. Rule of double criminality: As regards the character of the crime, most states follow the rule of
―double criminality‖, i.e., that it is a condition of extradition that the crime is punishable according
to the law both of the states of asylum and of the requesting state.
7. Reasonable prima facie evidence: There must be reasonable prima facie evidence of the guilt of
the accused.
INTERVENTION - DEFINED BY OPPENHEIM: ―Intervention‖ is dictatorial interference by a

state in the affairs of another state for the purpose of maintaining or altering the actual condition of
things.
Lawrance: ―Intervention‖ is an interference with the proceedings of a sovereign state by another

state or group of states. The interfering state endeavors to compel it to do something which, if left to
itself, it would not do, or refrain from doing something which, if left to itself, it would do.
J. G. Starke: “Intervention‖ means something more than mere interference and much stronger
than mediation (reflection) or diplomatic suggestion. To fall within the terms of their prohibition, it
must be dictatorial interference, in opposition to the will of the particular state affected.
Quincy Wright: Quincy Wright‘s view is that ―intervention‖ may be diplomatic as well as military.
A diplomatic community of threatening tone, implying possible use of military measures may
constitute intervention.
Kinds of intervention: There are three different kinds of intervention, which are as follows:
1. Internal intervention: It is the interference by one state between disputing sections of the
community in another state either for protection of the legitimate government or the insurgents
(rebel).
2. External intervention: It is the intervention by one state in the relations generally of the hostile
relations of other states. It is, in other words, an intervention in the foreign affairs of another state.
3. Punitive intervention: It is a punitive measures falling short of war and it in the nature of a
reprisal (revenge) for an injury suffered at the hands of another state.
When intervention can be permitted - general rule: General rule is that intervention is not allowed
under International Law. Use of force by one state against another state, is always unlawful.
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Article 2 of the Charter of the United Nations clearly condemns intervention when it provides that
all members shall refrain in their relations from the threat or use of force against the territorial
integrity or political independence of any state.
Exceptional cases: There are, however, exceptional cases in which a state has at International Law a
legitimate right of intervention.
Grounds of intervention: The intervention can be permitted upon following grounds:

1. Self-protection: The supreme interest of the state overrides law. A state has a right to interfere in
the affairs of another state where the security and immediate interests of the former are
compromised.
2. Enforcement of Treaty Rights: A state is justified in interfering in the affairs of another state if
the provisions of any treaty oblige the former to preserve the independence or neutralists of the
latter.
3. Invitational intervention: As regards invitation by the lawful government of the state to intervene
in its international affair, the matter is not free from difficult. It is again highly controversial whether
the invitation from the government could be legitimately regarded as from the lawful government in
such cases.
4. Grounds of humanity: Another justification for intervention is based on the ground of humanity.
Lawrance observes that in the opinion of many writers such interventions are legal, but they can not
be brought within the ordinary rules of International Law.
5. Balance of power: Preservation of the balance of power has been as undoubted maxim of
European diplomacy from the middle of the seventeenth century. But the intervention on this
ground has been condemned by jurists of all ages.
6. Protection of persons and property: Protections of the persons, property and interests of its
nationals may provide justification for intervention. The necessity for protection may arise due to
gross injustice or due to injury caused by unfair discriminations.
7. Intervention in civil war: With the establishment of the United Nations there is not justification
for intervention by individual states in the civil wars of other states.
8. Protector’s affairs: A state has at International Law a legitimate right of intervention in the
affairs of a protectorate (colonial state) under its dominion.
9. Removal of international nuisance: An intervening state may justify its intervention on the
ground of removal of international nuisance.
10. Collective intervention: Collective intervention at the present time is in pursuance of the
provisions of the United Nations that is the enforcement action under the authority of the United
Nations Organization.
State servitude (slavery) - J. G. Starke: Stake defines an international servitude as ―an exceptional
restriction imposed by treaty on the territorial sovereignty of a particular state whereby the territory
of that state is put under conditions or restrictions serving the interest of another state.‖
M. P. Tandon: It is a right whereby the territory of one state is made liable to permanent use by
another state for some specified purpose. For example, by agreement a state may be obliged to allow
the passage of troops of a neighboring state or may be prevented to fortify its frontiers in the interest
of the neighboring state.
L. Oppenheim: International servitude is that exceptional restrictions through which a state may
exercise certain rights over the territory of another state. State servitudes are those exceptional
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restrictions made by treaty on the territorial supremacy of a states by which a part or the whole of its
territory is in a limited way made perpetually to serve a certain purpose or interest of another state.
Rights in rem: The right arising out of servitude is one in rem. It follows that the servitude remains
in force whatever happens to the territory of the state bound by the servitude, for example, if it be
annexed or merged in another state.
Object of state servitude: The object of state servitude is always the whole or a part of the territory
of the state the territorial supremacy of which is restricted by any such servitude.
Subjects of state servitude: Subjects of the state servitude are states only and exclusively, since state
servitude can exist between states only.
Kinds of servitude: Oppenheim mentions four kinds of servitude, which are as follows:
1. Military servitude: Military servitude is a servitude acquired for military purposes, such as, the
right to keep troops in foreign territory or to send an armed forces through foreign territory.
2. Economic servitude: Economic servitude is a servitude which is acquired for the purpose of
commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign
territorial waters, or to enjoy the advantages of a free zone for custom purpose, to built a railway-line
on foreign territory.
3. Positive servitude: Positive servitude means that a state has to perform certain acts on the
territory of another state. For example,
(1) Building and operating a railway in a certain territory.
(2) Construction of a customhouse.
(3) Having fishery rights in the territorial waters of another state.
(4) Lay down telegraph cable through foreign territory and such like.
Positive servitude is also termed as ―active or affirmative‖ servitude.
4. Negative servitude: Negative servitude connotes that the state is bound by the servitude must
refrain from doing something on that territory or abstain from exercising its territorial rights in some
ways. For instance, it may permit a state to demand that a neighboring state shall not fortify its
frontiers or increase its naval on land armament beyond a certain limit.
INTERNATIONAL HUMANITARIAN LAW

The rules of “Law of War‖, dealt with in the previous chapter, which govern the resort to force in
international relations (ius ad bellum), are intended to prohibit, or at least to restrict, the resort to war
(armed force) in international relations. However, because it is not possible to fully prevent war (the
use of armed force), attempts have been made to regulate the conducts of war in order to mitigate its
extent. The attempts have succeeded in establishing rules to govern the actual conducts of war (ius
in bello). These rules, to some legal scholars, are part of the Law of War, thus they are referred to as
rules related to ―Law of War‖. However, to others they form a separate law known as
―International Humanitarian Law‖.
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Because the prevailing view considers ―International Humanitarian Law‖ to be a separate law, it
is reasonable to deal with this law in a separate chapter. Thus, the present chapter is endeavored to
the study of ―International Humanitarian Law‖ (called also ―Law of Armed Conflicts‖).
As it has been apparent that prevention of war has not been possible, it has been apparent that the
rules formulated in ―International Humanitarian Law‖ would not be effective without attaching
responsibilities in cases of their violations, and without having a mechanism to prosecute violators.
Thus, ―International Criminal Law‖ has come into existence, as a derivative of ―International
Humanitarian Law‖.
“International Humanitarian Law” (called also “Law of Armed Conflicts”) is that branch of
International Law which regulates the conduct of armed conflicts (war).
It is inspired by a feeling for humanity and is centered on the protection of human being in time of
war (armed conflicts). It seeks to mitigate the effects of armed conflicts by limiting the choice of
means and methods of conducting military operations and providing protections to persons and
civilian objects during armed conflicts.
International Humanitarian Law compiles those rules of International Law which aim to protect
persons, victims of the evils of armed conflicts, as well as, by extension, objects not directly serving
military purposes. In this sense, it is apparent that there is a relation between International
Humanitarian Law and the Law of Human Rights because both laws aim to guarantee to persons
the enjoyment of rights and freedom and to protect them from evils.
However, there is an essential difference between these two laws since International Humanitarian
Law applies only in time of armed conflicts, while Law of Humanitarian rights applies in all time.
How does ―International Humanitarian Law‖ emerge and develop? What are its sources, scope and
content? How is it executed? These are the questions, which are answered in the following.
SECTION 1:
THE CODIFICATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
To protect man against the evils of war and cruel treatments is not a new idea. It goes back to the
dawn of history. In a distant past, some military leaders used to order their troops to spare the lives
of enemy prisoners (soldiers and civilians) and to treat them well. Often upon the termination of
war, the belligerent parties used to agree to exchange the prisoners in their hands. Throughout the
history, such practices and likewise gradually evolved into a body of customary rules regulating the
conduct of war.
Because the scope and content of the customary rules related to the conduct of war were
somewhat vague and uncertain, a movement was initiated during the Nineteenth Century to
embody such rules in binding international instruments.
In 1864, mainly as a result of the pioneering effort of the Swiss businessman Henry Dunant, a
diplomatic conference convened in Geneva by invitation of the Swiss Government for the purpose of
codifying certain rules which would guarantee a better treatment of the wounded and facilitate the
work of the medical personnel in the field of land-war. On August 22, 1864, the conference adopted
the ―Convention for the Amelioration of the Condition of the Wounded in Armies in the Field‖.
The most important principles introduced by the 1864 Geneva Convention were: The neutrality
of ambulances and military hospitals, as such, they are protected and respected by the belligerents as
long as they accommodate wounded and sick; hospitals, ambulances and evacuation parties would
be distinguished by a uniform flag or armlet bearing ―a red cross on a white ground‖; the exemption
of hospital and ambulance personnel from being captured or being the target of fire; wounded and
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sick combatants should be collected and cared for; and civilians coming to the assistance of the
wounded should be respected. This Convention was accepted by all the then independent States.
The 1864 Geneva Convention was the first modest step in the process of codifying rules of
International Humanitarian Law. This step was followed by many other steps, before the
―International Humanitarian Law‖ reached its present scope and content.
In 1868, the ―Declaration of St Petersburg‖ came to prohibit the use of explosive or flammable
bullets. This Declaration, in fact, added strength to the principle of the Law of War concerning the
obligation of the belligerents to limit the use of force in meeting a legitimate military objective.
At the Hague Peace Conferences of 1899 and 1907, a series of conventions were adopted,
codifying the law of war. The Conventions were intended to set legal limits to means and methods
of land and naval warfare; such legal limits still form the basis of the existing rules. The
Conventions emphasized that belligerents remained subject to the ―Law of Nations.‖ They
contained rules concerning the treatment of prisoners of war; the conduct of military operations,
particularly in regard of means of injuring the enemy, sieges and bombardments, and occupied
territory; and the rights and duties of neutral States. Moreover, One of these Conventions, namely
the ―1907 Hague Convention for the Adaptation to Maritime Warfare of the Principles of Geneva
Convention‖ (the Tenth 1907 Hague Convention) expanded the protection of the 1906 Geneva
Convention to the victims of war at sea.
The 1864 Geneva Convention was revised twice, before and after the First World War, in order
to adapt its provisions to new realities. The first revision took place in 1906. The major achievement
of the ―1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armies in the Field‖ was the development of the provisions for application of the principles
formulated in the 1864 Convention, taking into account the changes in the world, particularly the
growing development of the means of destruction, in order to make such principles more effective.
The second revision was made in 1929, taking into account the experiences of the First World War,
particularly those related to the treatment of the wounded, the sick, and the prisoners of war. Two
Conventions were concluded in 1929: the ―1929 Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armies in the Field‖; and the ―1929 Geneva Convention
Relative to the Treatment of Prisoners of War‖.
The two Conventions made important improvements to the old provisions of the Law of
Geneva. They formulated a clear and complete set of rules and principles on capture and captivity
of prisoners of war, and on the treatment of the wounded and the sick. They introduced the ban on
reprisals against the prisoners of war, and the principle that application of the rules of the
Convention would be open to international scrutiny. Notably, in this 1929 Diplomatic Conference,
the ―red crescent‖ was recognized as the symbol of Muslim countries in place of the ―red cross‖.
The atrocities of the Second World War provided the incentive for major revision and further
development of the law of Geneva. In 1949 a diplomatic conference was convened in Geneva at the
instigation of the International Committee of the Red Cross (ICRC) and by invitation of the Swiss
Government for such purposes. The 1949 Geneva Conference led to the conclusion of four
Conventions; three Conventions substituting the three Conventions in force, namely the Tenth 1907
Hague Convention and the two 1929 Geneva Conventions; and the Convention on the protection of
civilian persons in time of war, which was the innovation of this Conference.
The four 1949 Geneva Conventions deal respectively with the amelioration of the condition of the
wounded and sick members of the armed forces in the field, the amelioration of the condition of the
wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of
war, and the protection of civilian persons in time of war.
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In 1977, two Additional Protocols to the 1949 Conventions were adopted at the closing of the
1974-1977 ―Conference on the Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts‖ which was held in Geneva at the invitation of the Swiss
Government.
Protocol I deals with the protection of victims of international armed conflicts. It develops in
detail the rules of Geneva Conventions and The Hague Conventions concerning the methods and
means of warfare. Protocol II deals with the protection of victims of internal armed victims. It
develops and supplements the rules of the 1949 Geneva Conventions concerning the non-
international armed conflicts.
In addition to the 1949 Geneva Conventions and the 1977 Additional Protocols, several
conventions related to the protection of persons and objects in time of war, and related to the
prohibition of certain weapons, were adopted in the years after 1949.
Among these conventions are: The 1954 Convention for the Protection of Cultural Property in the
Event of Armed Conflict; the 1972 Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their destruction; the 1980
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to Excessively Injurious or to Have Indiscriminate Effects; and the Chemical
Weapons Treaty of 1993.
SECTION 2:
SOURCES, SCOPE AND CONTENT OF INTERNATIONAL HUMANITARIAN LAW
A. The Sources and Composition of International Humanitarian Law

All the conventions mentioned above could constitute the sources of the International
Humanitarian law. The codification of the rules of International Humanitarian Law shows that this
law consists of two branches: the Law of Geneva and the Law of The Hague. While the Law of
Geneva has a precisely defined subject area, which is the protection of persons against abuse of
force, the Law of The Hague covers all the other problems of the law of war.
(1) The Law of The Hague

The Law of The Hague consists of the several Conventions adopted at the Hague Peace
Conferences of 1899 and 1907. The Hague Conventions regulates various aspects of the laws of war
and neutrality. Almost all these conventions are still in force, although many of their provision have
been overtaken by the modern conditions of warfare. The conventions regulates matters such as the
opening of hostilities, the laws and customs of war on land, the rights and duties of neutral powers
and persons in case of war on land, the status of enemy merchant ships at the outbreak of hostilities,
the conversions of merchant ships into warships, the laying of automatic submarine contact mines,
bombardment by naval force in time of war, capture in naval war, and rights and duties of neutral
powers in naval war.
(2) The Law of Geneva

The Law of Geneva consists of four conventions of 1949 and two additional protocols of
1977. The conventions are:
- The First Geneva Convention of 1949: Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field.
- The Second Geneva Convention of 1949: Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
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- The Third Geneva Convention of 1949: Geneva Convention relative to the Treatment of
Prisoners of War.
- The Fourth Geneva Convention of 1949: Geneva Convention relative to the Protection of
Civilian Persons in Time of War.
The additional protocols to the Geneva conventions are:
- Protocol I: Protocol Additional to the Geneva Conventions of 12 August 1949, and Related
to the Protection of Victims of International Armed Conflicts.
- Protocol II: Protocol Additional to the Geneva Conventions of 12 August 1949, and Related
to the Protection of Victims of Non-International Armed Conflicts.
B. The General Scope of International Humanitarian Law

All The Hague Conventions and the 1906 Geneva Convention include the general participation
clause (clause siomnes) which states that the provisions of the Conventions shall be binding on the
contracting parties only in case of hostilities between two or more of them and that those provisions
shall cease to be binding if one of the belligerent powers is not a signatory to the Convention. Such a
clause was generally accepted before the First World War.
However, the four 1949 Geneva Conventions specifically rejected such a clause. They state that
the conventions shall be respected in all circumstances, and shall apply to all cases of declared war
or any other armed conflict which may arise between two or more of the contracting parties, and
that even if one of the powers in conflict is not a party to the Conventions, the powers who are
parties to the Conventions shall remain bound by them in their mutual relations, and they shall
furthermore be bound by the Conventions in relation to the said power, if the latter accepts and
applies the provisions thereof. Furthermore, they provide that neutral powers shall apply by analogy
the provisions of the Conventions to the concerned persons received or interned in their territory.
The Geneva Conventions expands their application to cases not involving armed conflict and
cases of non-international armed conflict. They state that they apply to all cases of partial and total
occupation of the territory of the contracting party even if the said occupation meets with no armed
resistance. They also apply to cases of armed conflict not of an international character occurring in
the territory of one of the contracting parties; in such cases, each party to the conflict shall be bound
to apply, as a minimum the specified provisions of the Conventions which guarantee to the victims
of this type of armed conflict at least the minimum protection. This position of the Geneva
Conventions regarding the non-international armed conflict occurring in the territory of a
contracting party constitutes derogation from the traditional principle of International Law
concerning the application of a convention only between the contracting parties (sovereign States);
such a position is reaffirmed in the 1977 Protocol II.
Protocol II provides that it apply to armed conflicts not covered by Protocol I, and to armed
conflicts taken place in the territory of a contracting party between its armed forces and dissident
armed forces or other organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted military
operations and to implement this Protocol. In this sense, Protocol II does not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts
of similar nature, as not being armed conflicts.
The 1977 Protocol I extends the application of the 1949 Geneva Conventions to include wars of
national liberation. It provides that it apply to cases of armed conflicts in which peoples are fighting
against colonial domination, alien domination and racist regimes in the exercise of their right of self
determination in accordance with the Charter of the United Nations and the 1970 ―Declaration on
Principles of International Law….‖ It is thus apparent from the above developments that the scope
of International Humanitarian Law was gradually enlarged. Today this Law applies to all
circumstances: in cases of armed conflicts involving contracting parties as well as non-contracting
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parties; in cases involving States as well as certain entities other than States; in cases of international
armed conflicts and wars of national liberation as well as non-international armed conflicts (internal
armed conflicts). This trend can be interpreted as modifying certain traditional concepts of
International Law, particularly those related to the subjects of the Law.
Notably, International Humanitarian Law recognizes two different categories of armed conflicts,
international armed conflicts and non-internal armed conflicts. International armed conflicts
(known as Wars) are those involve two or more States; wars of national liberation are considered
international armed conflicts. Non-international (internal) armed conflicts (usually known as civil
wars) are those warlike hostilities which occur in the territory of a single State
C. The Persons Protected under International Humanitarian Law

The main aim of International Humanitarian Law is to protect persons, victims of the evils of
armed conflicts. To this end, this Law formulates a set of protections to be provided to certain
categories of persons who are called ―protected persons‖. Protected persons are those who, at a
given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation,
in the hands of a party to the conflict or occupation power of which they are not nationals. The
protected persons to whom the protections of International Humanitarian Law apply are the
following:
1. The Wounded and the Sick
Wounded and sick are persons, whether military or civilian, who because of trauma, disease or
other physical or mental disorder or disability, are in need of medical assistance or care and who
refrain from any act of hostility. They also include maternity cases, newborn babies and other
persons who may be in need of immediate medical assistance or care, such as expectant mothers,
and who refrain from any act of hostility.
2. Shipwrecked
Shipwrecked are persons, whether military or civilian, who are in peril at sea or in other waters as a
result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any
act of hostility.
3. Medical Personal
Medical personal are those persons, whether military or civilian, assigned, whether permanently
or temporary, by a party to the conflict, exclusively to the medical purposes or to the administration
of medical units or the operation or administration of medical transports. Medical purposes include
the search for, the collection, transport and treatment of the wounded and sick.
Medical personnel also include: the medical personnel of national Red Cross (Red Crescent)
societies and other national voluntary aid societies duly organized and authorized by a party to a
conflict; the medical personnel of a neutral or of other State which is not a party to that conflict, or
of a recognized and authorized aid society of such a State; and the medical personnel of an impartial
international humanitarian organization.[
“Medical units‖ means establishments and other units, whether military or civilian, organized
for medical purposes, namely the search for, collection, transportation, diagnosis or treatments of
the wounded, sick and shipwrecked or for the prevention of disease. This term includes hospitals
and the likes, and various medical centers.
“Medical transports‖ means any means of transportation, such as vehicles, ships and aircrafts,
whether military or civilian, permanent or temporary, assigned exclusively to medical transportation
and under the control of a competent authority of a party to the conflict.
4. Religious Personnel
Religious personnel are military or civilian persons, such as chaplains, who are exclusively engaged
in the work of their ministry and attached to the armed forces, medical units, medical transports, or
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civil defense organization of a party to the conflict. They also include: those assigned by a neutral
or other State which are not a party to that conflict, or by a recognized and authorized aid society of
such a State; and those assigned by an impartial international humanitarian organization.
5. Prisoners of War
Prisoners of war are combatants who have fallen into the hands of the enemy, the adverse party
to the conflict. Combatants are members of the armed forces of a party to a conflict other than
medical and religious personnel. The armed forces of a party to a conflict consist of all organized
armed forces, groups and units (militias or volunteer corps forming part of such armed forces) which
are under a command responsible to that party for the conduct of its subordinates. Combatants also
include members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a party to the conflicts and operating in or outside
their own territory, provided that such groups fulfill the conditions specified in the Third Geneva
Convention, which are:
1) They are commanded by a person responsible for his subordinates;
2) They have a fixed distinctive sign recognizable at a distance;
3) They carry arms openly; and
4) They conduct their operations in accordance with the laws and customs of war.
6. Civilians and Civilian Population
Civilians mean persons who are not members of the armed forces of a party to the conflict, and not
members of other militias and members of other volunteer corps, referred to them as
combatants. The civilian population comprises all persons who are civilians.
Among civilians, women and children (under fifteen years of age) are granted special status in
International Humanitarian Law, and consequently special protections.
7. Other Protected Persons
There are certain categories of persons who have not appeared in situations of armed conflicts until
quite recently. Although they are included within the meaning of civilians, they need special
attention because they are exposed, in case of armed conflict, to extreme danger. These persons are
the personnel of civilian defense organizations, and the journalists; Protocol I includes them within
the protection of the International Humanitarian Law.
D. Objects Protected under International Humanitarian Law The aim of International

Humanitarian Law is not limited to the protection of persons only, but it is, by extension, aim to
protect objects not directly serving military purposes. The objects to which, the protections of this
Law apply are the following.
1) Objects Serving Medical Purposes

All objects serving medical purposes, whether civilian or military, are protected under International
Humanitarian Law. These objects include: fixed or mobile medical establishments such as hospitals,
the likes, centers and units; and medical transports such as vehicles, trains, ships and aircraft
2. Civilian Objects Civilian objects are those which are not used for any military purposes or
objectives. In addition, they are objects not used for medical purposes; otherwise, they will be
included within the meaning of medical objects. Civilian objects include:
- Objects which are indispensable to the survival of the civilian population, such as foodstuffs,
crops, livestock, and drinking water installations and supplies.
- Civilian houses, schools and places of work.
- Undefended localities.
- Objects which constitute the cultural or spiritual heritage of peoples, such as historic
monuments, works of arts, and places of worship.
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- Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical
generating stations.
- Natural environment.
- Neutral and demilitarized zones.
E. The Fundamental Protections of International Humanitarian Law

The aim of International Humanitarian Law is to protect the human being and safeguard his
dignity in time of armed conflicts. To this end, a multitude of rules regulating the conduct of States
in armed conflicts, and which constitute the protections and guarantees to persons in time of armed
conflicts, are formulated in this Law. These rules are of two types: injunctions, requiring the parties
to the dispute thereto to act, and prohibitions, requiring the parties to abstain from acting.
The rules formulated in International Humanitarian Law do not come from a vacuum; they are
inspired by other principles and rules expressly stated in other instruments of International Law or
clearly implied from thereof, or are derived from the customary international law. The principles of
the Law of Human Rights, such as the principle of inviolability, the principle of non-discrimination
and the principle of security, inspire many rules and principles formulated in International
Humanitarian Law.
The principles of Human Law corollary to the Law of War, such as the principle of military
necessity and the principles of limitation are also behind the rules and principles of International
Humanitarian Law. The principle of neutrality provides the inspiration to the rules of International
Humanitarian Law, particularly those related to the immunity and protection of the medical
personnel and facilities.
The most important fundamental rules and principles formulated in International Humanitarian
Law, which constitute protections and guarantees to persons under this Law, are the following:
1. Persons taking no active part in hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat (out of combat) by sickness, wound, detention, or
any other cause, shall in all circumstances be protected and treated humanely, without any adverse
distinction founded on race, color, religion or faith, sex, wealth, or any other similar criteria. Their
lives, and their physical and moral integrity shall be respected. Women shall be especially protected
against any attack on their honour, in particular against rape, enforced prostitution, or any form of
indecent assaults.
2. The wounded, sick and shipwrecked shall be collected, cared for, and protected by the party to
the conflict who has them in its power.
3. Medical personnel, establishments, transports and materials are protected. The emblems of
the Red Cross and the Red Crescent are the signs of such protection and must be respected.
4. It is forbidden to kill or injure an enemy who surrenders or who is out of combat. Captured
combatants and civilians under the authority of an adverse party are entitled to respect for their lives,
dignity, personal rights and convictions. They shall at all times be humanely treated. They shall be
protected against all acts of violence and reprisals. They shall have the rights to correspond with
their families and receive relief.
5. Every person shall be entitled to benefit from the fundamental judicial guarantees. No one
shall be responsible for an act he has not committed. No one shall be subjected to physical or mental
torture, corporal punishment or cruel or degrading treatment.
6. Individual or mass forcible transfer, as well as deportations of persons from occupied territory
to other territory are prohibited regardless of their motive.
7. Civilians and civilian population shall enjoy general protection against dangers from military
operations. They shall not be the object of attack. Acts or threats of violence to spread terror among
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the civilian population are prohibited. Indiscriminate attacks are prohibited. Reprisals are
prohibited.
8. Civilian objects shall not be the object of attack or reprisals.
9. Parties to a conflict and members of their armed forces do not have an unlimited choice of
methods and means of warfare. They are prohibited from employing weapons or methods of warfare
of the nature to cause unnecessary losses or excessive suffering.
10. Parties to a conflict shall at all times distinguish between combatants and civilian population in
order to spare the civilian population. Attacks shall be directed solely against military objectives.
SECTION 3: EXECUTION OF INTERNATIONAL HUMANITARIAN LAW

The rules of International Humanitarian Law, like any of other laws, are meaningless if they are
not executed. Since these rules constitute obligations imposed upon sovereign States, States have to
execute its obligations. In executing its obligations, the State will be fulfilling its obligations under
International Law, and consequently serving its own interests. Any breach of its obligations under
International Law, the State will subject itself to sanctions. Sanctions will be applied against the
State and individuals. The subject of individual criminal responsibility under International Law will
not be dealt with in the present chapter, but in the next chapter.
International Humanitarian Law requires each State to execute its obligations under it in all
circumstances, in time of peace and in the event of armed conflict. In addition, it attributes to the
protecting powers (States) and substitute organizations such as the Red Cross societies, the authority
to aid and assist in the execution of its rules.
A. Execution by States
In all the Conventions and Protocols of International Humanitarian Law, States undertake to
respect and ensure respect for them in all circumstances. States shall, therefore, take without delay
all the necessary measures for the execution of their obligations under them. They also shall give
orders and instruction to ensure observance of them, and shall supervise their execution.
States undertake, in time of peace as in time of war, to disseminate the Texts of the conventions
as widely as possible in their respective countries.They undertake to include the study thereof in
their military programmes and civil instructions, so that the principles thereof may become known to
the entire population, in particular to the armed fighting forces, the medical personnel and the
chaplains.
States undertake to enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed, any of the grave breaches of the Conventions defined
thereof. Each State is under the obligation to search for persons alleged to have committed, or to
have ordered to be committed, such breaches, and shall bring such persons, regardless of their
nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of
its own legislation, hand such persons over for trail to another State concerned, provided such State
has made out a prima facie case.
Each State is under the obligation to take measures necessary for the suppression of all acts
contrary to the provisions of the Conventions other than the grave breaches defined thereof.
B. Protecting Powers
During an armed conflict, the execution of the provisions of the Conventions and the Additional
Protocols should be ensured, to a certain extent, with the aid of the protecting powers entrusted to
safeguard the interests of the parties to the conflict. The first obligation of a party to the conflict after
the outbreak of armed conflict is to appoint a protecting power.
―Protecting power‖ means a neutral or other State not a party to the conflict which has been
designed by a party to the dispute and accepted by the adverse party and has agreed to carry out the
humanitarian functions assigned to a protecting power under the Conventions and the Additional
Protocols which aim to ensure protection and assistance to the victims of armed conflicts. In
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performing their functions, the protecting powers also help in the implementation of International
Humanitarian Law.
C. Red Cross Societies
The protecting powers may be substituted by the International Committee of the Red Cross
(ICRC) or other impartial humanitarian organizations which offer all guarantees of impartiality and
efficacy. In addition to the humanitarian functions which the ICRC can perform in place of the
protecting powers, it is granted a sort of right of initiative in humanitarian activities. Among the
numerous functions which the ICRC can perform are the rights to visit all places where prisoners of
war or civilian internees are kept, and to interview these protected persons without witnesses,
personally or through an interpreter. Humanitarian functions can also be carried out by National
Red Cross or Red Crescent Societies, and by other duly recognized and authorized charitable
associations.
INTERNATIONAL ENVIRONMENTAL LAW

“International Environmental Law” is a branch of ―International Law‖ which consists of rules
relevant to the environment. It aims at protection of environment and attainment of sustainable
development. It is the newest or the youngest branch of International Law; it emerged in the mid-
1960s.
The increasing recognition of the need to protect the global environment by laying down new
principles and rules to govern its various issues has required that International Law be developed in
order to establish such new principles and rules. Thus, International Environmental Law emerged
as the result of such development of International Law.
Actually, the concerns for environment have been reflected for a long time in the various
branches of International Law, namely the Law of the Sea, Space Law, State responsibility, and the
legal regime of Antarctica. However, these branches do not specifically focus on solving
environmental problems. International Environmental Law has emerged specifically to resolve
environmental problems and issues. It is different from the other branches of International Law;
nevertheless, it overlaps and interacts with them.
In the following sections, we will deal with the codification and development of International
Environmental Law, and its contents and its main emergent legal principles.
SECTION 1:
THE CODIFICATION AND DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW
Since the mid-1960s, the need to protect the environment resulting from the increase in the level
of understanding of the dangers facing the earth‘s environment has instigated an effort, by
governments and by the United Nations as well as by non-governmental organizations, to invoke
legal protection of the environment both at domestic and international levels.
At the domestic level, most countries have promulgated environmental legislation to that end. At
the international level, the United Nations initiated in 1972 the long international process for the
codification and development of international environmental law as a separate new branch of
International Law.
Although the United Nations had convened some conferences addressing environmental issue
before 1972. For instance, the 1949 ―United Nations Scientific Conference on the Conservation and
Utilization of Resources‖ which focused on exchanging experience in resources use and
conservation techniques, and the 1968 ―UNESCO Conference of Experts on the Scientific Basis for
Rational Use and Conservation of the Resources of the Biosphere‖ which addressed the issues with
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respect to the life-support systems of plants and animals. In this latter Conference, the United
Nations addressed for the first time a range of ecological issues and recognized Man‘s relationship to
nature at the international level.
By the early 1970s, environmental issues were appearing on the agenda of various United
Nations organs and its specialized agencies as well as other organizations and agencies. In 1972, the
United Nations convened its ―Conference on the Human Environment‖ (UNCHE) in
Stockholm; this Conference constituted the first major step in a process of codifying and developing
International Environmental Law as a separate but integral part of International Law.
This Conference focused mainly on protecting ―the human environment.‖ It resulted in the
adoption of four major initiatives concerning the normative, institutional, programmatic, and
financial aspects of the environment at the international level. The first initiative was the adoption
of ―the Stockholm Declaration‖, which intended to inspire and guide the peoples of the world in the
preservation and enhancement of the human environment. The second initiative was the agreement
to establish a new institution within the United Nations, which is ―the United Nations
Environmental Programme‖ (UNEP). The third initiative was the adoption of ―the Action Plan‖
for the development of environmental policy which to be administered by the UNEP.
Since 1972 Stockholm Conference, there has been a remarkable proliferation of international
instruments concerning various environmental problems. These involve air pollution, marine
pollution, global warming and ozone depletion, the dangers of nuclear and other extra-hazardous
substances, Antarctica, and threatened wildlife species.
In the same year after the 1972 Stockholm Conference, the United Nations General Assembly
established ―the United Nations Environmental Programme‖ (UNEP) as a subsidiary organ to deal
with environmental issues. The UNEP is based in Nairobi, Kenya, and consists of a Governing
Council of fifty-eight members elected by the G.A. This organ has contributed extensively to the
development of International Environmental Law.
It has been behind the conclusion of a number of conventions, such as ―the 1985 Vienna Convention
for the Protection of the Ozone Layer‖ which imposes on States a few concrete obligations related
to the protection of human health and the environment, and ―the 1987 Montreal Protocol on
Substances that Deplete the Ozone Layer‖which aims at reducing and eventually eliminating
consumption and production of a range of ozone-depleting substances.
In 1989, ―the Basel Convention on the Control of the Transboundary Movements of Hazardous
Wastes and their Disposal‖ was concluded. In 1991 ―the Convention on Environmental Impact
Assessment in a Transboundary Contest‖, was concluded. In 1992 ―the Helsinki Convention on the
Protection and Use of Transboundary Watercourses and Lakes‖ and ―the Helsinki Convention on
the Transboundary Effect of Industrial Accidents‖ were conclude. Moreover, after the 1972, the
General Assembly of the United Nations has adopted a number of resolutions concerning the
environment.
The process of the development of International Environmental Law was culminated in ―the
United Nations Conference on Environmental and Development‖ (UNCED) which was held in Rio
de Janeiro in June 1992. The Conference was held to reconcile worldwide economic development
with protection of the environment. The Earth Summit, as this Conference is known, was the
largest gathering of world leaders in history, with 117 heads of state and representatives of 178
nations in all attending. By means of treaties and other documents signed at the conference, most of
the world's nations nominally committed themselves to the pursuit of economic development in
ways that would protect the Earth's environment and non-renewable resources.
This Conference adopted five instruments:

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(1) ―The Rio Declaration on Environment and Development”:

A universal statement of general rights and obligations of States affecting the environments
formulated in twenty-seven non-binding principles.
(2) Agenda 21: A programme of action consisting of forty chapters covering many issues, ranging
from alleviation of poverty to strengthening national and international society‘s ability to protect the
atmosphere, oceans, and other waters, mountains, and areas vulnerable to desertification. This
Programme recognizes more explicitly than ―the Stockholm Action Plan‖ the interrelations between
economic, environment, poverty and development issues. Agenda 21 outlines global strategies for
cleaning up the environment and encouraging environmentally sound development.
(3) “The Framework Convention on Climate Change” (known as “Global Warming
Convention”): An international treaty creating a regulatory regime to deal with the effects of
energy use at the Climate. It aims to stabilize the greenhouse gas emissions at a level that would
prevent dangerous anthropogenic (chiefly of pollution, originating from human activities)
interference with the climate system. It requires States to reduce their emission of carbon dioxide,
methane, and other ―greenhouse‖ gases thought to be responsible for global warming. It contains a
set of principles that the parties shall be guided by in their efforts to achieve the objective of the
Convention, and a set of principles constituting commitments to be undertaken by the parties under
the Convention.
(4) “The Convention on Biological Diversity”: An international treaty creating a regulatory
regime to deal with the large-scale natural resources depletion. It aims at the conservation and
sustainable use of biological diversity, the fair and equitable sharing of the benefits from its use, and
the regulation of biotechnology. It requires States to take inventories of their plants and wild
animals and protect their endangered species.
(5) “The Non-legally Binding Authoritative Statement of Principles for a Global Consensus
on the Management, Conservation and Sustainable Development of all Types of Forests”: As
the title of this instrument suggests it is not a treaty, but a statement of principles with no binding
force.
This Statement of Principles aims at preserving the world's rapidly vanishing tropical rainforests. It
recommends that nations monitor and assess the impact of development on their forest resources
and take steps to limit the damage done to them.
In addition, the Rio de Janeiro Conference of 1992 established ―the Inter- Agency Committee on
Sustainable Development‖ in order to improve co-operation between the various United Nations
organs and agencies concerned with this issue. In the same year, ―the Commission on Sustainable
Development‖ (CSD) was established by the General Assembly and ―the Economic and Social
Council of the United Nations‖ in order to follow up the 1992 Rio de Janeiro Conference, and to
keep under review the implementation of its instruments.
Since the 1992 Rio de Janeiro Conference, several international instruments, whether universal or
regional, dealing with various environmental issues have been adopted.The instruments deal with
issues such as trans-boundary pollution, marine environment and pollution, nuclear safety and
damage, desertification, Hazardous wastes, and watercourses, rivers and lakes. Among these
instruments, there is ―the 1997 Kyoto Protocol to the United Nations Framework Convention on
Climate Change‖.
It is important to mention that in 1994 the Global Environmental Facility, which was established
earlier, was transformed into a permanent financial mechanism to award grants and funds to
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developing countries for global environmental protection projects. The Facility focuses upon climate
change, the destruction of biological diversity, the pollution of international waters and ozone
depletion.
SECTION 2:
THE MAJOR EMERGENT PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
The emergent principles and rules of International Environmental Law are laid down in the various
environmental instruments, conventions as well as non-binding statements, declarations and
resolutions, which have been adopted in the last thirty-three years. These principles and rules
accords rights and obligations to individuals, peoples and States with respect to global environment
and sustainable development. Although not all these principles and rules are binding, the non-
binding ones may constitute an evidence of the tendency of international community with regard to
such subjects. The most significant emergent principles and rules of environment and sustainable
development are the following:
(1) The Human Environmental Right: This principle accords all persons the right to a secure,
healthy and ecologically sound environment. It provides that every person has the fundamental right
to freedom, equality and adequate conditions of life, in an environment of a quality that permits a
life of dignity and well-being.
(2) The Principle of Sustainable Development: This principle considers human beings to be at
the center of concerns for sustainable development. It provides that the right to development must be
fulfilled so as to equitably meet developmental and environmental needs of present and future
generations.
(3) The Right to Development: This principle accords each State the right to development, and
the sovereign right to exploit its own resources pursuant to its own environment and developmental
policies. It provides that environmental protection should not outweigh the need of a State for
economic development. It also provides that economic and social development is essential for
ensuring a favorable living and working environment for human being and for creating conditions
on earth that are necessary for the improvement of the quality of life.
(4) The Principle of Integration of Environmental Protection and Development: This principle
provides that environmental protection should constitute an integral part of the development process
and cannot be considered in isolation from it.
(5) The Principle of Environment Protection and Precaution: This principle requires all states
to take all the precautionary measures according to their capabilities in order to protect the
environment. States should take precautionary measures to prevent or minimize environmental
degradation. They should minimize in an economically efficient manner harmful environmental
impacts. They should endeavor to limit and, as far as possible, gradually reduce and prevent air
pollution, including long-range trans-boundary air pollution.
(6) The Principle of Co-operation: This principle provides that international matters concerning
the protection and improvement of the environment should be handled in a co-operative spirit. It
requires States to co-operate in a spirit of global partnership to conserve, protect and restore the
health and integrity of the Earth‘s ecosystem; and to develop policies and strategies by means of
exchanges of information and consultation and to exchange information to combat generally the
discharge of air pollution.
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(7) The Principle of State Responsibility for Damages to the Environment: This principle
imposes upon the States the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or areas beyond the limits of national
jurisdiction. States are liable for any damage caused by their breach of their obligations. Such
liability is absolute; States are liable for any adverse effects irrespective of fault.
(8) The Polluter-Pays Principle (the Civil Liability Principle): This principle entails that the
polluter should, in principle, bear the costs of pollution.
(9) The Principle of Notification and Consultation: This principle requires a State immediately
to notify other States of any natural disasters or other emergencies that likely to produce sudden
harmful effects on the environment of those States. States should provide prior and timely
notification and relevant information to potentially affected States on activities that may have a
significant adverse transboundary environmental effect and shall consult with those States at an
early stage and in good faith.
(10) Environmental Impact Assessment (EIA) Principle: This principle involves a procedure for
evaluation the likely impact of a proposed activity on the environment. The object of the assessment
is to provide decision-makers with information about possible environmental effects when deciding
whether to authorize the activity to proceed. Under this principle States are required to establish an
environmental assessment procedure that permits public participation and the preparation of
environmental impact assessment documentations.
(11) Environmental Monitoring Principle: This principle involves a process whereby States
observe, measure, evaluate and analyze, by recognized scientific methods, the risks or effects of
pollution or environmental harm. Unlike EIA, monitoring is generally undertaken after the project
has begun; its object is to check initial EIA prediction and determine whether measures are needed
in order to abate or avoid pollution or environmental harm.
THE LAW OF TREATIES

A treaty is a written international agreement concluded between States or other persons of
International Law and governed by International Law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation. In English, the term
‗treaty‖ is used as a generic term embracing all kinds of international agreements in written form. In
addition to the term ―treaty‖, many other terms are used, such as ―accord‖, ―act‖, ―arrangement‖,
―charter‖, ―covenant‖, ―convention‖, ―declaration‖, ―general act‖, ―pact‖, ―protocol‖, ―statute‖, as
well as the term ―agreement‖ itself. Whatever the appellation of the agreement, it does not affect its
validity under International Law.
Treaties can be traced back as far as the early-recorded history of Mankind. Evidence for their
existence has been found throughout the history. Treaties have been the major legal instruments for
regulating relations between States. States concluded treaties in every conceivable subject. Ten of
thousands treaties have been registered with the United Nations since 1946. Until 1980, treaties had
been governed by international customary law. In 1969, the Vienna Convention on the Law of
Treaties was signed, codifying and developing existing customary rules; it came into force in 1980.
The 1969 Vienna Convention on the Law of Treaties defines ―treaty‖ as ―an international
agreement concluded between States in written form and governed by International Law, whether
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embodied in a single instrument or in two or more related instruments and whatever its particular
designation.‖ It further provides that it ―does not apply to international agreements concluded
between States and other subjects of international law or between such other subjects of international
law, or to international agreements not in written form‖. These provisions exclude agreements
between states which are governed by other than International Law, agreements between States and
international organizations or between international organizations, and oral agreements.
The reason for the exclusion of these types of international agreements is to avoid complication and
complexity if they are included in a single convention with written agreements between States, since
the rules governing them differ in certain aspects from the rules governing written agreements
between States. A special convention applicable to agreements between states and international
organizations, or between international organizations, namely ―the Convention on the Law of
Treaties between States and International Organizations or between International Organizations‖,
was signed in 1986. However, this Convention has not yet entered into force.
The following sections are devoted to the rules applicable to the written agreements between
States as provided by the 1969 Vienna Convention on the Law of Treaties. However, the rules
provided by this Convention are not inclusive; other rules existed under customary international law
continue to govern questions not regulated by the Convention.
SECTION 1: CONCLUSION OF TREATIES

Treaties may be concluded by States in any manner they wish. There are no obligatory
prescribed forms or procedures to be followed. Negotiating, formulating, signing and adopting a
treaty are subject to the intention and consent of the contracting States. However, the 1969
Convention on the Law of Treaties provides general rules applicable to the conclusion of treaties,
rules regarding the capacity and the competent persons to conclude treaties, the adoption and
authentication of the text of treaties, and the adoption of treaties.
A. The Capacity to Conclude Treaties
Under the Convention, every State possesses capacity to conclude treaties. Since States are
represented by persons, the Convention provides rules to ensure that persons representing States
have the power to adopt or authenticate the text of a treaty, or to express the consent of the State
bound by a treaty. Such persons must produce what is known as ―full powers‖. ―Full powers‖
refers to the document issued by the competent authority of the concerned State certifying that the
persons represent it. This requirement is necessary to ensure the States parties to the treaty that they
are dealing with the competent persons. However, there are certain persons who need not to
produce the ―full powers‖. These persons are:
(1) Heads of States, heads of governments and the ministers for foreign affairs, for the purpose of
performing all acts related to the conclusion of a treaty;
(2) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their
States;
(3) Representatives accredited by States to an international conference or to international
organization or one of its organs, for the purpose of adopting the text of a treaty in that conference,
organization or organ.
B. Adoption and Authentication of the Text of Treaties
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Once a draft of a treaty has been agreed upon by the competent persons, several stages need to be
followed before it becomes legally binding. First, the text of the treaty has to be adopted. The
adoption of the text of a treaty implies that the form and content of the text of the proposed treaty
are settled. It takes place by the consent of all the States participating in its drawing up, except the
adoption at an international conference, which takes place by the vote of two-third of the States
present and voting, unless by the same majority they decide to apply a different rule. The adoption
of the text of a treaty does not mean that the participating States have expressed consent to be bound
by the treaty, or that the treaty has been adopted.
Second, the text of a treaty has to be authenticated. Authentication is a procedural step whereby
the text of the treaty is established as correct and genuine, and not subject to alteration. It is
necessary to enable the States parties to the treaty to know definitively its content so that there will
be no confusion as to its exact terms. The authentication of the text of a treaty takes place according
to the procedure provided in the text or agreed upon by the States participating in its drawing
up. Failing such procedure, authentication may take place by the signature, signature ad
referendum or initiating by the representatives of the participating States.
C. The Adoption of Treaties

A treaty has to be adopted by the participating States to become binding upon them. States adopt
a treaty by giving their consent to it. The consent of the States parties to a treaty is an essential
factor because States are bound only by their consent. The consent may be expressed by signature,
exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by
any other means if so agreed.
(1) Consent by signature

A State may be regarded as consented to a treaty by signature when the treaty provides that
signature shall have that effect, when it is established that the negotiating States were agreed that
signature should have that effect, or when the intention of the State to give that effect to the
signature appears from the full powers of its representatives or was expressed during the
negotiation. Signing the treaty means officially affixing the names of the representatives of the
contracting States.
The act of signature is usually a formal event. Often in important treaties, heads of States
formally affix their signatures in a ceremony. Usually in multilateral conventions, the representatives
of the participating States sign the treaties during a special closing session held for that reason.
(2) Consent by exchange of instruments constituting a treaty

A State may be regarded as consented to a treaty by an exchange of instruments constituting a
treaty when the treaty provides that the exchange of such instrument has that effect, or when it is
established that the States were agreed that the exchange of the instrument should have that
effect. Nowadays, often each State signs an instrument constituting a treaty and sends it to the other
State (or States) for its signature.
(3) Consent by ratification, acceptance or approval

The signing of the treaty by the representative of a State is either a means of expressing the final
consent of the State to be bound by the treaty, or an expression of provisional consent subject to
ratification, acceptance or approval. The effect of signature depends upon the terms of the treaty,
the agreement of the negotiating States or their intention. If the treaty is subject to ratification
(acceptance or approval), then it does not become binding until it is ratified by competent authority
of contracting State, namely the head of the State. Ratification by the competent authority of the
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contracting State is a step well established historically to ensure that the representative of the State
did not exceed his powers or instructions with regard to the conclusion of the treaty. It allows a
State to examine the provisions of a treaty before undertaking formal obligations. Moreover, it
enables a State, in the period between signature and ratification, to pass the required legislation or to
obtain the required approval. The question of how a state ratifies treaties is a matter for its internal
law alone. The rules related to ratification vary from State to State.
The consent of a state to be bound by a treaty is expressed by ratification (acceptance or approval)
when the treaty provides for such consent to be expressed by means of ratification, when it is
established that the negotiating states were agreed that ratification should be required, when the
representatives of the State has signed the treaty subject to ratification, or when the intention of the
States to sign the treaty subject to ratification appears from the full powers of its representative or
was expressed during the negotiation.
Ratification occurs when instruments of ratification are exchanged between the contracting
States, or are deposited with the depositary. In the case of multilateral treaty, it usually provides that
the instruments of ratification should be deposited with the State or the international organization
that is appointed by the treaty to act as the depositary.
(4) Consent by accession

In addition to signature and ratification, a State may become a party bound by a treaty by
accession. Accession is a formal acceptance of a treaty by a State which did not participate in
negotiating and signing it. It is possible if the treaty provides that consent to it may be expressed by
accession, if it is established that the negotiating States were agreed that consent may be expressed
by accession, or if all the States parties to the treaty have subsequently agreed that consent may be
expressed by accession. Accession has the same effects as signature and ratification combined. It is
the practice in the modern times that certain treaties remain open for accession by particular States
for some periods.
D. Reservation to a Treaty
It is well established in the practice of States that a State has a capacity, when becoming a party to
a treaty, to accept most of the provisions of a treaty or to object, for whatever reasons, to particular
provisions of a treaty. This capacity is reiterated by the Vienna Convention on the Law of Treaties
which states that a State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless the reservation is either prohibited by the treaty or incompatible with
its object and purpose, or the treaty permits only specified reservations. A reservation is defined by
this Convention as ―a unilateral statement, however phrased or named, by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the
legal effects of certain provisions of the treaty in their application to that
State‖.
The effect of a reservation depends on whether it is accepted or rejected by the other parties to a
treaty, and this matter differs whether a treaty is bilateral or multilateral one. A reservation to a
bilateral treaty presents no problem since it constitutes a counteroffer which may reopen the
negotiation between the two parties concerning the terms of the treaty; and unless the reservation is
accepted by the other party, no treaty will be concluded. However, a reservation to a multilateral
treaty causes a problem because it may be accepted by some parties and rejected by others. In such a
case, the Convention on the Law of Treaties provides that a reservation expressly authorized by a
treaty does not require any subsequent acceptance by the other contracting States unless the treaty so
provides, and that when it appears from the limited number of the negotiating States and the object
and purpose of a treaty that the application of the treaty in its entirety between all the parties is an
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essential condition of the consent of each one to be bound by the treaty, a reservation requires
acceptance by all the parties.
The Convention requires that a reservation, an express acceptance of a reservation and an
objection to a treaty be formulated in writing and communicated to the contracting States and other
States entitled to become parties to the treaty. However, an acceptance of a reservation by a State
may be implied if it has raised no objection to the reservation by the end of a period of twelve
months after it was notified of the reservation or by the date on which it expressed its consent to be
bound by the treaty, whichever is later. An objection by another contracting State to a reservation
does not preclude the entry into force of the treaty as between the objecting and reserving States,
unless a contrary intention is definitely expressed by the objecting State.
Unless the treaty provides otherwise, a reservation or an objection to a reservation may be
withdrawn at any time. In case of the withdrawal of a reservation the consent of a State which has
accepted the reservation is not required for its withdrawal. It is required that the withdrawal of a
reservation or of an objection to a reservation be formulated in writing. Unless the treaty provides
otherwise, or it is agreed otherwise, the withdrawal of a reservation or of an objection to a
reservation becomes operative only when notice of it has been received by the concerned State.
A reservation established with regard to another party modifies for the reserving State in its
relations with that other party the provisions of the treaty to which the reservation relates to the
extent of the reservation, and modifies those provisions to the same extent for that other party in its
relations with the reserving State. However, the reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se, i.e. in their relations with each other.
SECTION 2: ENTRY INTO FORCE, REGISTRATION AND DEPOSITARY OF TREATIES

The Convention provides rules applicable to the entry into force of treaties as well as rules
applicable to registration and depositary of treaties.
A. Entry into Force of Treaties

According to the Vienna Convention on the Law of Treaties, a treaty enters into force in such a
manner and upon such date as it may provide or as the negotiating States may agree. In the absence
of any such provisions or agreement, a treaty enters into force as soon as consent to be bound by that
treaty has been established for all the negotiating States. When the consent of a State to be bound by
a treaty is established on a date after the treaty has come into force, the treaty enters into force for
that State on that date, unless the treaty provides otherwise.
Normally, treaties specify that they will enter into force upon a certain fixed date or after a
determined period following the last ratification. Multilateral treaties, usually, provide for entry into
force upon ratification by a specified number of States. However, even when the minimum required
number of ratifications is reached, the treaty enters into force only between those States that have
ratified it; it does not enter into force for other States until they have also ratified it. The Vienna
Convention on the Law of Treaties, for example, provides that it will come into force on the thirtieth
day following the date of deposit of the thirty-fifth instrument of ratification or
accession. Moreover, it provides that for each State ratifying or acceding to the Convention after
the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into
force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Nevertheless, a treaty or a part of it may be applied provisionally pending its entry into force if
the treaty itself so provides, or the negotiating States have in some other manner so agreed. But,
unless the treaty provides otherwise or the negotiating States have agreed otherwise, the provisional
application of a treaty or a part of it with respect to a State shall be terminated if that State notifies
the other States between which the treaty is being applied provisionally of its intention not to
become a party to the treaty.
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B. Registration and Depositary of Treaties

After the entry of a treaty into force, the Vienna Convention requires that the treaty to be
transmitted to the Secretariat of the United Nations for registration or filling and recording, as the
case may be, and for publication. This requirement follows the one provided for by the Charter of
the United Nations. Article 102 of the Charter provides that every treaty and every international
agreement entered into by any Member of the United Nations must, as soon as possible, be
registered with the Secretariat and published by it. Under this article, non-registered treaty or
agreement remains valid but the parties to it may not invoke it before any organ of the United
Nations, including the International Court of Justice. This requirement is intended to prevent States
from entering into secret treaties and in general to ensure publicity for treaties.
Treaties, nowadays, are registered with the Secretariat of the United Nations which then
publishes them in the United Nations Treaty Series (UNTS). The UNTS provides a useful source of
reference for the conclusion and contents of treaties.
In addition, the Vienna Convention on the Law of Treaties requires the designation of depositary
of a treaty. This designation may be made by the negotiating States, either in the treaty itself or in
some other manner. The depositary may be one State or more States, an international organization
or the chief administrative officer of the organization. The depositary has functions of considerable
importance relating to: keeping custody of the original text of the treaty, any instruments,
notifications and communications related to the treaty; giving certified copies of the treaty and
transmitting them to the concerned States; receiving any signatures, instruments, notifications and
communications related to the treaty; and informing the States parties to the treaty about the entry
into force of the treaty. Notably, the United Nations Secretariat plays a significant role as depositary
of multilateral treaties.
SECTION 3: OBSERVANCE AND APPLICATION OF TREATIES

Once treaties enter into force, they must be observed and applied by the parties. Observance and
application of treaties are subject to certain established principles and rules.
A. Observance of Treaties
The Latin principle ―Pacta Sunt Servanda‖, which means that treaties shall be observed, is the
fundamental principle of the customary law of treaties and the very foundation of International
Law. This principle is included in the Preamble and Article 26 of the 1969 Vienna Convention on
the Law of Treaties, which states that ―[e]very treaty in force is binding upon the parties to it and
must be performed by them in good faith.‖ Another long-standing principle of customary
international law included in Article 27 of the Convention is that ―[a] party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.‖
According to these two principles, the parties to a treaty are under a duty to observe the treaty in
good faith, and a duty not to invoke its internal law as justification for failure to perform the treaty.
B. Application of Treaties
Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the
following rules:
(1) Non-Retroactivity of Treaties ]

The Vienna Convention provides that the provisions of a treaty, unless a different intention
appears from the treaty or is otherwise established, do not bind a party to it in relation to any act or
fact which took place or any situation which ceased to exist before the date of the entry into force of
the treaty with regard to that party. The general rule here is that a treaty does not operate
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retroactively; any fact, action or situation must be assessed in the light of the rules of law that are
contemporary with it, not of the provisions of the subsequent treaty, unless a contrary agreement so
provides.
(2) Territorial Scope of Treaties
The Vienna Convention provides that unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in respect to its entire territory. This is a
general rule, but it is possible for a State to stipulate that the treaty will apply only to part of its
territory.
(3) Application of Successive Treaties Related to the Same Subject Matter
Sometimes, it happens that a party to a treaty subsequently enters into another treaty related to
the same subject matter, and that the provisions of the two treaties are inconsistent; or it happens
that the other party or parties to the second treaty may or may not also be parties to the first
treaty. These situations raise certain problems which need to be resolved. Article 30 of the Vienna
Convention lays down the rules which constitute the general guide to be followed in resolving such
problems. It is still possible, however, for the parties themselves to resolve the raised problems by
their mutual agreement.
Under Article 30, the rights and obligations of States parties to successive treaties related to the
same subject-matter shall be determined in accordance with the following rules:
a. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible
with, an earlier or later treaty, the provisions of that other treaty prevail.
b. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty
is not terminated or suspended in operation, the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty.
c. When the parties to the later treaty do not include all the parties to the earlier one:
i. as between States parties to both treaties, the earlier treaty applies only to the extent
that its provisions are compatible with those of the later treaty;
ii. as between a State party to both treaties and a State party to only one of the treaties, the
treaty to which both States are parties governs their mutual rights and obligations.
In case of treaties concerning the same subject-matter and having incompatible provisions, the
presumption is that the later treaty prevails over the earlier treaty. A treaty may provide expressly
that it is to prevail over subsequent incompatible treaties; this is the case of Article 103 of the Charter
of the United Nations which stipulates that ―[i]n the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail.‖ Furthermore, a
particular treaty prevails over other treaties if it includes peremptory norms of general international
law (jus cogens), i.e. norms accepted and recognized by the international community of States as a
whole as norms from which no derogation is permitted and which can be modified only by
subsequent norms of general international law having the same character.
(4) Treaties and Third States
The Latin principle ―pactatertiisnecnocentnecprosunt‖, which means that a treaty creates neither
right nor obligation for third States (not parties to the treaty) without their consent, is a general
principle which constitutes part of the customary international law.The reasons for this principle can
be found in the fundamental principles of the sovereignty and independence of States, which
contemplate that States must consent to rules before they can be bound by them. This principle is
codified in article 34 of the 1969 Vienna Convention on the Law of Treaties as a general rule
corollary of the principle of consent and of the sovereignty and independence of States. However,
this Convention states certain exceptions to this general rule.
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First, the Convention provides that an obligation may arise for a third State from a provision of a
treaty if the parties to the treaty intend the provisions of the treaty to be the means of establishing the
obligation, and the third State expressly accepts that obligation in writing. In such a case, the
obligation may be revoked or modified only with the consent of the parties to the treaty and of the
third States, unless it is established that they have agreed otherwise.
Second, the Convention provides that a right may arise for a third State from the provision of a
treaty if the parties to the treaty intend the provision to accord that right either to the third State, or
to a group of States to which it belongs, or to all States, and the third State assents thereto, unless the
treaty provides otherwise. In such a case, the right may not be revoked or modified by the parties to
the treaty if it is established that the right has not been intended to be revoked or modified without
the consent of the third State. In exercising such a right the third State is required to comply with
the conditions for its exercise provided for in the treaty or established in conformity with the
treaty. Third, the Convention provides that a rule of a treaty may become binding upon a third State
if it becomes a part of customary international law.
An example of a treaty imposes obligation upon non-party State is the 1815 agreement
concerning the neutralization of Switzerland. The apparent examples of rules which are binding
upon third States as customary international law are the rules of the 1899 and 1907 Hague
Conventions concerning land warfare, and the principles stated in Article 2 of the Charter of the
United Nations, especially those related to the peaceful settlement of disputes and the prohibition of
resorting to threat or use of force. As far as rights conferred upon third States by a treaty are
concerned, there are many treaties containing provisions in favor of third States (pactum in
favoremtertii). Examples of such treaties are the 1919 Treaty of Versailles which contains provisions
in favor of Denmark and Switzerland, and the 1888 Constantinople Convention which contains
provisions guaranteeing freedom of passage for ships through the Suez Canal.
SECTION 4: INTERPRETATION OF TREATIES

Interpretation of treaties is the most frequent focus of disputes arising with regard to
treaties. Because language is not a perfect means for expressing legal rules, ambiguities and
uncertainties in treaty-texts are common phenomena. Thus interpretation of treaties has been a
major task in International Law. Obviously the parties to a treaty have competence to interpret a
treaty, but other entities may perform such a task. The treaty itself may confer competence on an ad
hoc tribunal, an international organ, or the International Court of Justice (ICJ). The Charter of the
United Nations is interpreted by the organs of the United Nations, which may request advisory
opinions from the ICJ.
Interpretation of treaties is a rational process of clarifying and elucidating the meaning of unclear
and ambiguous treaty provisions. Its purpose is to ascertain in good faith the intention of the
parties. It is governed by numerous principles and rules developed by international tribunals,
publicists, organs of international organizations and diplomatic practice. Though, there is no
coherent and mandatory system of rules of treaty interpretation in International Law.
The 1969 Vienna Convention on the Law of Treaties, however, lays down certain fundamental
rules and guidelines for treaty interpretation. It contains specific provisions concerning general rules
of treaty interpretation, supplementary means of interpretation, and interpretation of treaties
authenticated in two or more languages.
A. General Rules of Treaty Interpretation

The first general rule for treaty interpretation provided by the Vienna Convention is that ―[a]
treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
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terms of the treaty in their context and in the light of its object and purpose.‖ This rule is the textual
approach of treaty interpretation.
The context of a treaty for the purpose of interpretation comprises, in addition to its text,
including its preamble and annexes, any agreement and instrument related to it and made in
connection with its conclusion. Together with the context of a treaty, should be taken into account
any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions, any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation, and any relevant rules of
International Law applicable in relations between the parties.
The second general rule for treaty interpretation provided by the Convention is that ―[a] special
meaning shall be given to a term if it is established that the parties so intended.‖ This is the
―intention of the parties‖ approach of treaty interpretation.
However, there are other established approaches of treaty interpretation not provided for in the
Vienna Convention on the Law of Treaties. Among these approaches is ―the principle of
effectiveness‖ which involves the interpretation of the terms of a treaty in a way that will render the
treaty most effective and useful. This principle is of particular importance in the interpretation of
multilateral treaties establishing international organizations.
B. Supplementary Means of Interpretation

The Vienna Convention provides that ―recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the circumstances of its
conclusion‖, when the meaning resulting from the application of the above general rules needs to be
confirmed, or when the interpretation according to the said general rules leaves the meaning
ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.
C. Interpretation of Treaties Authenticated in Two or More Languages

In case of a treaty authenticated in two or more languages, as often happens with multilateral
treaties, the Vienna Convention provides that when a comparison of the authentic texts discloses a
difference of meaning which the application of the provided general rules and supplementary means
of interpretation does not remove, ―the meaning which best reconciles the texts, having regard to the
object and purpose of the treaty, shall be adopted.‖ Nevertheless, the Convention provides that the
treaty may provide or the parties may agree that, in such a case, a particular text shall prevail.
SECTION 5: AMENDMENT AND MODIFICATION OF TREATIES

Although amendment and modification of treaties are two processes share a common aim which
is an alteration or revision of a treaty, they are two separate processes accomplished by different
manners and subject to different rules and conditions. Amendment relates to a formal alteration or
revision of certain treaty provisions or the treaty as a whole, affecting all the parties to that
treaty. Modification relates to an alteration or revision of certain treaty provisions as between
particular parties only. Thus the 1969 Vienna Convention on the Law of Treaties deals with these
two processes in separate articles.
A. Amendment of Treaties
The Vienna Convention refers to three manners to accomplish amendments to treaties. The first
manner is that a treaty may be amended by agreement between the parties. In such a manner, the
rules described by the Vienna Convention which are related to the conclusion and entry into force of
a treaty will be applied.
The second manner is that a treaty may be amended in accordance with the procedure laid down
in the treaty itself. Multilateral treaties, particularly those establishing international organizations,
normally provide detailed procedure for amendments. The Charter of the United Nations, for
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example, lays down in Articles 108 and 109 the procedure for its amendments and revision. Under
these Articles such amendments or revision shall take effect when adopted and ratified by two-thirds
of the members of the United Nations, including all the permanent members of the Security Council.
The third manner is that a treaty may be amended in accordance with the basic rules of procedure
described by the Vienna Convention. The Vienna Convention specifies that any proposed
amendment must to be notified to all contracting States. All contracting States shall have the right
to participate in the decision as to the action to be taken in regard to such proposal, and in the
negotiation and conclusion of any agreement for the amendment of the treaty. Every State entitled
to become a party to the treaty is also entitled to become a party to the treaty as amended. The
amendment will not bind any State already a party to the original treaty which is not a party to the
amending agreement. Any State which becomes a party to the treaty after the entry into force of the
amending agreement, unless it intends otherwise, is considered as a party to the treaty as amended in
relation to parties bound by the amending agreement, and as a party to the unamended treaty in
relation to any party to the treaty not bound by the amending agreement.
B. Modification of Treaties
The Vienna Convention provides that two or more of the parties to a multilateral treaty may
conclude an agreement to modify the treaty as between themselves alone if one of two conditions is
fulfilled. The first condition, if ―the possibility of such a modification is provided for by the
treaty.‖ The second condition, if ―the modification in question is not prohibited by the treaty‖ and
provided it ―does not affect the enjoyment by the other parties of their rights under the treaty or the
performance of their obligation, and ―does not relate to a provision, derogation from which is
incompatible with the effective execution of the object and purposes of the treaty as a whole.‖ The
Vienna Convention requires, however, that unless in the first mentioned case or if the treaty provides
otherwise, the parties in question must notify the other parties of their intention to conclude the
agreement and of the modification to the treaty.
SECTION 6: TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Despite the general rule that ―every treaty in force is binding upon the parties to it and must be
performed by them in good faith,‖ the Vienna Convention provides that a treaty may be terminated,
denounced, withdrawn from or suspended. The Convention provides that the termination of a
treaty, its denunciation, the withdrawal of a party or the suspension of its operation ―may take place
only as a result of the application of the provisions of the treaty or of the present Convention.‖ The
applicable rules to such instances, provided by the Convention are as such:
A. Termination of a Treaty
Termination of a treaty means the end of the operation of a treaty, resulting in depriving all the
parties of all the rights, and in releasing them from performing further obligations, under the
treaty. Under the Vienna Convention termination of a treaty or the withdrawal of a party may take
place either in conformity with the provisions of the treaty, or at any time by consent of all the
parties after consultation with the other contracting States. Actually, most of the modern treaties
contain provisions for their termination or for the withdrawal of a party. A treaty may provide that
it shall come to an end automatically after a certain time, or at the occurrence of a particular
event. A treaty may give a party a right to withdraw from it after giving a certain period of notice.
Where a treaty does not contain any provision regarding its termination and does not provide for
denunciation or withdrawal, it will not be subject to the denunciation or withdrawal, unless it is
established that the parties intended to admit such a possibility, or such a right is implied by the
nature of the treaty. In such cases, however, a party must give at least twelve months‘ notice of its
intention to denounce or withdraw from the treaty.
The Convention specifies the reasons for terminating a treaty. First, a treaty may be terminated
by the conclusion of a later treaty related to the same subject-matter, if it appears that the matter is to
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be governed by that treaty or the provisions of the later treaty are so far incompatible with those of
the earlier one that the two treaties are not capable of being applied at the same time. Second, a
treaty may be terminated as a consequence of its breach. A material breach of a treaty which
consists in either a repudiation of the treaty not permitted by the Vienna Convention or the violation
of a provision essential to the accomplishment of the object or purpose of the treaty entitles the other
parties to terminate the treaty. Third, a treaty may be terminated by the impossibility of
performance resulting from the permanent disappearance or destruction of an object indispensable
for the execution of the treaty. Forth, a treaty may be terminated when a fundamental change of
circumstances occurs with regard to those existing at the time of the conclusion of that treaty. Fifth,
a treaty may be terminated by reason of the severance of diplomatic or consular relations between
parties to the treaty. However, such event does not affect the legal relations established between the
parties except in so far as the existence of diplomatic or consular relations is indispensable for the
application of the treaty. Finally, if a new peremptory norm of general international law emerges,
any existing treaty which is in conflict with that norm terminates.
As regard the consequences of termination of a treaty, the Convention provides that unless the
treaty provides otherwise or the parties agree otherwise, the termination of a treaty releases the
parties from any further obligation to perform the treaty; however, it does not affect any right,
obligation or legal situation of the parties created through the execution of the treaty prior to its
termination.
B. Suspension of the Operation of a Treaty

Suspension of the operation of a treaty means the making of a treaty temporary inoperative in
regard to either all or a particular party. Under the Vienna Convention, suspension of the operation
of a treaty, like termination, may take place either according to the provisions of the treaty or at any
time by consent of all the parties. Two or more parties to a multilateral treaty may conclude an
agreement to suspend the operation of provisions of the treaty, temporary and as between
themselves alone if ―the possibility of such a suspension is provided for by the treaty,‖ or ―the
suspension in question is not prohibited by the treaty‖ and provided it ―does not affect the
enjoyment by the other parties of their rights under the treaty or the performance of their
obligation,‖ and ―is not incompatible with the object and purposes of the treaty. However, unless
the treaty provides otherwise, the parties in question must notify the other parties of their intention
to conclude the agreement and of those provisions of the treaty the operation of which they intend to
suspend. Treaties sometimes provide for the possibility of suspension of the entire treaty or some of
its provisions in particular circumstances.
Under the Convention, a treaty may be suspended by the following circumstances:

1) the conclusion of a later treaty related to the same subject matter, if it appears from the later
treaty or otherwise established that such was the intention of the parties;
2) a material breach of a treaty which consists in either a repudiation of the treaty not permitted by
the Vienna Convention or the violation of a provision essential to the accomplishment of the object
or purpose of the treaty;
3) the temporary impossibility of performing a treaty; or 4) a fundamental change of circumstances
occurs with regard to those existing at the time of the conclusion of that treaty.
Suspension of the operation of a treaty releases the parties from any further obligation to perform
the treaty during the period of suspension; however, it does not affect any right, obligation or legal
situation of the parties created through the execution of the treaty prior to its suspension.
SECTION 7: INVALIDITY OF TREATIES
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Invalidity of a treaty means nullity of a treaty or its particular provisions because of the existence
or absence of certain circumstances or conditions affecting its legal status. Customary international
law does not provide clear and acceptable rules governing validity or invalidity of treaties. The 1969
Vienna Convention on the Law of Treaties, however, provides some general rules on this
matter. This Convention describes rules governing invalidity of treaties in general, grounds for
invalidity of treaties, and consequences of the invalidity of treaties.
A. General Rules on Invalidity of Treaties
The Vienna Convention on the Law of Treaties provides that ―the validity of a treaty or the
consent of a State to be bound by a treaty may be impeached only through the application of the
present Convention.‖ Under the Convention, a ground for invalidating (as well as for terminating,
withdrawal from or suspending the operation of a treaty) may be invoked only with respect to the
whole treaty, except where the ground relates solely to particular clauses which are separable and
unessential, or relates to a material breach of a treaty by one of the parties. A State cannot invoke a
ground for invalidating (as well as for terminating, withdrawal from or suspending the operation of a
treaty) if, after becoming aware of the fact, it expressly agreed that the treaty is valid or remains in
force, or it, by reason of its conduct, may be considered as having acquiesced in the validity of the
treaty or in its continuance in force or in operation.
B. Grounds for Invalidating Treaties
The Vienna Convention specifies the following grounds for invalidating treaties:
1) Manifest violation of a provision of fundamental importance of State‘s internal law regarding
competence to conclude treaties: A violation is manifest ―if it would be objectively evident to any
State conducting itself in the matter in accordance with normal practice and in good faith.‖
2) Lack of the State‘s representative appropriate full powers.
3) Excess of authority by the representative: Such an excess will be a ground to invalidate a
treaty if the specific restriction imposed by the State upon its representative to express its consent to
be bound by the treaty was notified to the other negotiating States prior to his expressing such
consent.
4) Error: A State may invoke an error in a treaty as invalidating its consent to be bound by the
treaty if the error relates to a fact or situation mistakenly assumed by that State to exist at the time
when the treaty was concluded, and that fact or situation forms an essential basis of its consent to be
bound by the treaty. If the State in question contributed by its own conduct to the error or if it was
put on notice of a possible error, it is not allowed to invoke such an error as a ground for invalidating
its consent. An error relating only to the wording of the text of a treaty does not affect its validity.
5) Fraud: A State may invoke the fraud as invalidating its consent to be bound by the treaty if it
has been induced to conclude that treaty by the fraudulent conduct of another negotiating State.
6) Corruption of a representative of a State: A State may invoke the corruption of its
representative as invalidating its consent to be bound by the treaty if the expression of its consent has
been procured through the corruption of its representative directly or indirectly by another
negotiating State.
7) Coercion of a representative of a State: Acts or threats directed personally against a
representative of a State as an individual in order to procure the expression of a State‘s consent to be
bound by a treaty render such expression of consent without any legal effect.
8) Coercion of a State by the threat or use of force: A treaty is void if its conclusion has been
procured by the threat or use of force in violation of the principles of International Law embodied in
the Charter of the United Nations.
9) Conflict of the treaty with an existing and emerging peremptory norm of general International
Law (Jus Cogens): A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general International Law. If a new peremptory norm of general International Law
emerges, any existing treaty conflicting with that norm becomes void and terminated.
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C. Consequences of Invalidity of Treaties

The consequences of invalidity of treaties vary according to the nature of the ground of
invalidity. The Vienna Convention makes a distinction between void and voidable treaties. In cases
of lack of full powers, coercion of a representative, coercion of a State and conflict with an existing
and emerging of peremptory norm of general international law, the treaty is void, which means that
the expression of consent of the State to be bound by the treaty is without any legal effect from the
beginning (ab initio). In cases of violation of the internal law of the State, excess authority by the
representative, error, fraud, and corruption of the representative, the treaty is probably voidable
rather than void; the treaty is valid until the State claims that it is invalid.
The State may invoke the ground to invalidate the treaty. However, this right may be lost for the
following reasons:
(a) if after becoming aware of the fact, the concerned State expressly agreed that the treaty is valid or
remains in force or it, by reason of its conduct, may be considered as having acquiesced in the
validity of the treaty or in its continuance in force or in operation; or
(b) if the concerned State contributed by its own conduct to the error or was put on notice of a
possible error.
The Convention provides that an invalid treaty is void and without any legal effect. If acts have
nevertheless been performed in reliance on such a treaty, each party may require any other party to
establish as far as possible in their mutual relations the position that would have existed if the acts
had not been performed. Acts performed in good faith before the invalidity was invoked are not
rendered unlawful by reason only of invalidity of the treaty.
SECTION 8:
PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVALIDITY, TERMINATION,
WITHDRAWAL FROM, OR SUSPENSION OF THE OPERATION OF A TREATY
The Vienna Convention provides that a party invoking a ground to invalidate a treaty, terminate
it, withdraw from it or suspend its operation, must notify, in writing, the other parties of its claim
and give them time to make objections before it takes any action. If after the expiry of a period
which shall not be less than three months from the receipt of the notification, no objection has been
raised by any party, the party making the notification may carry out the measures it has
proposed. If, however, objection has been raised by any party, the parties must seek a solution
through the peaceful means indicated in Article 33 of the Charter of the United Nations.
If no solution is reached within twelve months, the dispute is to be submitted to a special
conciliation commission set up under an annex to the Convention or, in cases of dispute involving
peremptory norms of general International Law to be submitted to the International Court of Justice
(ICJ).
THE LAW OF SEA

The Law of the Sea is that part of Public International Law that regulates the rights and duties of
States, and possibly other subjects of International Law, with regard to the use and utilization of the
seas in time of peace. In this sense, the Law of the Sea is distinguished from the private maritime
law, which regulates the rights and obligations of private persons with regard to maritime matters,
such as the carriage of goods and maritime insurance.
Although some rules of the Law of the Sea can be traced to medieval private compilations
governing primarily maritime rights and obligations of merchants and ship-owners in the
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Mediterranean, the Law of the Sea developed as part of the Law of Nations in the Seventeenth
Century with the emergence of the modern national State system. The classical publicists drew on
Roman Law and dealt with the matters of this subject in the natural law tradition. The best known
publication, among the early writings on this subject, is the 1609 Hugo Grotius‘ pamphlet ―Mar
Liberum‖ (Freedom of the Sea).
By the Nineteenth Century, as customary rules gradually produced a body of law based on State
practice and consensus, the Law of the Sea, like other areas of Public International Law, developed
into a system of customary principles and rules governing the rights and duties of States, mostly in
the territorial sea and the high seas.
During the Nineteenth Century and the period before the Second World War, several
unsuccessful attempts were made to codify the customary law of the sea. After the Second World
War, several conferences were held for the objective of codifying the various aspects of the Law of
the Sea. The first conference was the First United Nations Conference on the Law of the Sea
(UNCLOS I), known as the 1958 Geneva Conference on the Law of the Sea, which led to the
conclusion of four conventions:
(1) The Convention on the Territorial Sea and Contiguous Zone;

(2) The Convention on the High Seas;
(3) The Convention on the Continental Shelf; and
(4) The Convention on Fishing and Conservation of the Living Resources of the High Seas.] An
Optional Protocol on the Compulsory Settlement of Dispute was signed.
The 1958 Geneva Conference on the Law of the Sea constitutes the first major codification of the
Law of the Sea. Most of the provisions of the first two conventions, and some of the provisions of
the Convention on the Continental Shelf, are a codification of customary law; while the others are a
mixture of codification and progressive development of International Law as understood by the
International Law Commission. Thus, although the conventions are binding only on States parties
to them, many of their provisions can be used as evidence of customary law against States not
parties to them. All these four conventions are still in force, but for a limited number of States; the
United States of America is among those States since it has not yet ratified the 1982 Convention on
the Law of the Sea.
The 1958 Geneva Conference failed to reach agreement on some questions, particularly on the
width of the territorial sea and rights of coastal States in the areas of the high sea adjacent to their
territorial seas. To deal with such questions, the Second United Nations Conference on the Law of
the Sea (UNCLOS II), which is known as the 1960 Geneva Convention on the Law of the Sea, was
convened; but this Conference failed to achieve its objectives. This reason, in addition to the
dissatisfaction of some States with various rules laid down in the 1958 Convention and the
technological, economic and political developments since its conclusion, led to the convene of the
Third United Nations Conference on the Law of the Sea, 1973-1982 (UNCLOS III). This
Conference led to the conclusion of the United Nations Convention of the Law of the Sea on
December, 1982, which entered into force on November 16, 1994.
The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and
development of contemporary international law governing the Sea in time of peace. Some of the
provisions of the 1982 Convention codify the existing customary international law of the sea; this is
particularly true of those provisions which repeat those of the four 1958 Conventions which codified
customary law. Almost all the provisions of the four 1958 Conventions are repeated, modified or
replaced by the 1982 Convention. But many of the provisions of the 1982 Convention depart from
the existing customary law; and those provisions do not represent existing law on the Sea for States
not parties to the 1982 Convention; they, however, indicate the directions in which the law may
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develop in the future. All States are prima facie bound by the customary rules, while only the parties
to a particular convention will be bound by the new rules contained therein.
The 1982 Convention prevails over the four 1958 Conventions as among the States parties to
it. It deals with most of the issues related to the Sea. Among these issues are:
(1) Territorial Sea and Contiguous Zone;
(2) Straits Used for International Navigation;
(3) Archipelagic States;
(4) Exclusive Economic Zone;
(5) Continental Shelf;
(6) High Seas;
(7) Regime of Islands;
(8) Enclosed or Semi-Enclosed Seas;
(9) Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit;
(10) The Area;
(11) Protection and Preservation of the Marine Environment;
(12) Marine Scientific Research;
(13) Development and Transfer of Marine Technology; and
(14) Settlement of Disputes.
In the following sections, most of the questions related to the above issues as provided by the
1982 Convention are discussed.
SECTION 1: TERRITORIAL SEA

The 1982 Convention on the Law of the Sea declares that the sovereignty of a coastal State
extends, beyond its land territory and internal waters to an adjacent belt of sea, described as the
territorial sea. Accordingly, the territorial sea, which is also known as territorial water, is a belt of
sea adjacent to the coast of a State over which a coastal State exercises its sovereignty. The
Convention provides that this sovereignty extends also to the air space over the territorial sea as well
as to its bed and subsoil. However, the exercise by a coastal State of such sovereignty over its
territorial sea is subject to the rules and limitations provided for in the said Convention and in the
International Law.
A. Limits of the Territorial Sea

The Convention adopts the twelve-mile limit as a breadth of the territorial sea. It provides that
every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines determined by a normal baseline or/and straight baselines
method; the coastal State may determine baselines in turn by any of these two methods to suit
different conditions. The baseline is the line from which the breadth of the territorial sea and other
coastal State zone, such as contiguous zone, exclusive economic zone or exclusive fishing zone, is
measured. The baseline forms the boundary between the internal waters on the landward side of the
coastal State and its territorial sea on its seaward side. Waters on the landward side of the baseline
of the territorial sea form part of the internal waters of the State, over which the State has an
absolute sovereignty. The outer limit of the territorial sea is the line every point of which is at a
distance from the nearest point of the baseline equal to the breadth of the territorial sea.
The normal baseline for measuring the breadth of the territorial sea is the low-water line (the line
on the shore reached by the sea at low tide) along the coast as marked on larger-scale charts officially
recognized by the coastal State. The method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the territorial sea is measured if the
coastline is deeply indented and cut into. However, this method may not be applied by a State in
such a manner as to cut off the territorial sea of another State from the high seas or an exclusive
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economic zone. This method is also employed in a case of a river flowing directly into the sea or of
a bay. In a case of a river, the baseline shall be a straight line across the mouth of the river between
points on the low-water line of its banks.
In a case of a bay, if the distance between the low-water marks of the natural entrance points of a
bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-marks,
and the waters enclosed thereby shall be considered as internal waters. Where the distance between
the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight
baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the
maximum area of water that is possible with a line of that length, and the enclosed waters shall be
considered as internal water; however, this rule does not apply to so-called ―historic bay‖.
For the purpose of delimiting the territorial sea, the outermost permanent harbor works which
form an integral part of the harbor system are regarded as forming part of the coast; but off-shore
installations and artificial islands shall are not considered as permanent harbor works. Roadsteads
which are normally used for loading, unloading and anchoring of ships, and which are situated
wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is
entitled, failing agreement between them to the contrary, extend its territorial sea beyond the median
line every point of which is equidistant from the nearest points on the baselines from which the
breadth of the territorial seas of the two States is measured. This rule, however, does not apply
where it is necessary by reason of historic title or other special circumstances to delimit the territorial
seas of the two States in a different way.
B. Rights of the Coastal State over the Territorial Sea

As the 1982 Convention provides, the sovereignty of the coastal State extends to its territorial sea
as well as to the air-space over its territorial sea, its bed and subsoil. In this regard the coastal State
enjoys the following:
(1) The exclusive right to fish, and to exploit the resources of the seabed and subsoil of its
territorial sea.
(2) The exclusive right in the air-space over its territorial sea to the exclusion of other States.
Foreign aircrafts, unlike ships, have no right of innocent fly in the air-space over the territorial sea of
a State.
(3) The right to enact laws and regulations, in conformity with the 1982 Convention and other
rules of International Law, particularly in respect of navigation, health, customs, immigration and
preservation of the environment.
(4) The right to take the necessary steps in its territorial Sea to prevent passage which is not
innocent.
(5) The exercise of criminal jurisdiction on board of a foreign ship (arresting any person or
conducting any investigation in connection with any crime committed on board of the foreign ship)
in the following cases: if the consequences of the crime extend to it; if the crime is of a kind to
disturb the peace of the country or the good order of its territorial sea; if the assistance of the local
authorities has been requested; if the measures are necessary for the suppression of illicit traffic in
narcotic drugs; or after leaving its internal water.
(6) The exercise of civil jurisdiction in relation to a foreign ship (levy execution against or arrest
the ship for the purpose of any civil proceedings) in respect of obligations or liabilities assumed or
incurred by the ship itself in the course or for the purpose of its voyage through its waters, or in
respect of any civil proceedings against a foreign ship after leaving its internal waters.
C. The Right of Innocent Passage in the Territorial Sea

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Under the 1982, the sovereignty of a coastal State over its territorial is subject to an important
limitation, which is the right of innocent passage enjoyed by ships (merchant ships, governmental
ships and warships) of all States, whether coastal or landlocked, over the territorial sea of the coastal
State. Passage means navigation through the territorial sea for the purpose of traversing that sea
without entering internal waters or calling at a roadstead or port facility outside internal waters, or
proceeding to or from internal waters or a call at such roadstead or port facility.
Passage must be continuous and expeditious; however, it may include stopping and anchoring in so
far as they are incidental to ordinary navigation or are rendered necessary by force majeure or distress
or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Passage
must take place in conformity with the 1982 Convention and with other rules of International
Law. Passage must be innocent; it is innocent so long as it is not prejudicial to the peace, good order
or security of the coastal State.
The right of innocent passage is also exists in internal waters where the establishment of a
baseline in accordance with the straight baselines method provided by the 1982 Convention has the
effect of enclosing as internal water areas which had not previously been considered as such.
The right of innocent passage is also enjoyed by submarines and other underwater
vehicles. However, it is required that they navigate on the surface and show their flag.
The 1982 Conventions provides that the coastal State must not hamper the innocent passage of
foreign ships through its territorial seas except in accordance with the Convention. The Coastal
State, in the application of the Convention or of any laws or regulations adopted in conformity with
it, must not impose requirements aiming at denying or impairing the right of innocent passage, or
discriminate on form or in fact against the ships of any State or against ships carrying cargoes to,
from or on behalf of any State. It must give appropriate publicity to any danger to navigation, of
which it has knowledge, within its territorial sea. It must not levy any charges upon foreign ships by
reason only of their passage through its territorial sea; charges may be levied as payment only for
specific services rendered to the ship.
The coastal State is under a duty not to exercise its criminal jurisdiction on foreign ship passing
through it territorial sea, except in the cases specified by the Convention (mentioned above). It is
also under a duty not to exercise civil jurisdiction in relation to a foreign ship or a person on its
board, except in the cases specified by the Convention (mentioned above). Notably, the warships
and other government ships operated for non-commercial purposes are immune from any
jurisdiction; however the coastal State, in a case of failure of any of these ships from complying with
its laws and regulations, may order it to leave its territorial Sea immediately.
Against these duties, the coastal State entitled to certain rights in respect of the right of innocent
passage granted to foreign ships. The coastal State may adopt laws and regulations, in conformity
with the provisions of the Convention and other rules of International Law,related to innocent
passage through its territorial sea, with which the foreign ships must comply. It may suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign ships for security
reasons.
SECTION 2: CONTIGUOUS ZONE

Contiguous zone is a maritime zone adjacent to the territorial sea of the coastal State over which
that State, as provided by the 1982 Convention, may exercise the control necessary to prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory
or territorial sea and to punish infringement of these laws and regulations committed within its
territory and territorial sea. According to the said Convention, the contiguous zone may not extend
beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured.
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It follows from the provision of the 1982 Convention related to the contiguous zone that the
rights of the coastal State over the contiguous zone do not amount to sovereignty. The coastal State
may only exercise jurisdictional powers for the reasons specified by the Convention. Still other
States have rights over these zones similar to those exercisable over the high seas except as they are
qualified by the existence of jurisdictional zones. Moreover, these zones are not automatically
belonging to coastal States as in the case of territorial sea; they must be specifically claimed by the
State.
SECTION 3: STRAITS USED FOR INTERNATIONAL NAVIGATION

A strait is a narrow natural sea passage connecting two large areas of the sea. The 1982
Convention defines international straits as straits used for international navigation either between
one part of the high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone, or between a part of the high seas or an exclusive economic zone and the
territorial sea of a foreign State; and it specifies a special regime of passage applicable to these
international straits. This regime of passage, however does not apply to a strait used for
international navigation if there exists through the strait a route through the high seas or through an
exclusive economic zone of similar convenience with respect to navigational and hydrographical
characteristics; in such routes, others provisions of the 1982 Convention, including those related to
the freedom of navigation and over-flight, apply.
The regime of passage specified by the Convention, as the Convention provides, does not affect
the legal status of the waters forming such straits or the exercise by the States bordering the straits of
their sovereignty or jurisdiction over such waters and their air space, bed and subsoil; however, such
sovereignty or jurisdiction of the bordering State is exercised subject to this regime and other rules of
International Law. Moreover, this regime does not affect: any area of internal waters within a strait,
except where the establishment of a baseline in accordance with the straight baselines method has
the effect of enclosing as internal waters which had not previously considered as such; the legal
status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones
or high seas; or the legal regime of straits in which passage is regulated in whole or in part by long-
standing international convention in force specifically related to such straits (For example, the
Turkish Straits of the Bosphorus and the Dardanelles which are regulated by the Montreux
Convention of 1936).
The regime of passage in international straits specified in the Convention includes the right of
transit passage and the right of innocent passage.
A. The Right of Transit Passage in International Straits

The right of transit passage is granted to all ships and aircrafts with respect of international straits
used for international navigation between one part of the high seas or an exclusive economic zone
and another part of the high seas or an exclusive economic zone. This right means the exercise of
the freedom of navigation and over-flight solely for the purpose of continuous and expeditious
transit of the international straits defined above. However, the requirement of continuous and
expeditious transit does not preclude passage through the strait for the purpose of entering, leaving
or returning from a State bordering the strait, subject to the conditions of entry to that
State. Moreover, any activity which is not an exercise of the right of transit passage through a strait
remains subject to the other applicable provisions of the Convention.
The Convention lists an exception to the right of transit passage through international straits
defined above. It provides that if the strait is formed by an island of a State bordering the strait and
its mainland and if there exists seaward of the island a route through the high seas or through an
exclusive economic zone of similar convenience with respect to navigational and hydrographical
characteristics, transit passage shall not apply; in such a strait, the right of innocent passage applies.
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In exercising the right of transit passage, ships and aircraft must, mainly: observe the relevant
provisions of the Convention, the relevant international regulations; comply with the laws and
regulations adopted by the States bordering the straits in conformity with the Convention; refrain
from any threat or use of force against the sovereignty, territorial integrity or political independence
of States bordering the strait; and refrain any activities other than those incidental to their normal
modes of continuous and expeditious transit unless rendered necessary by force majeure or by
distress. During transit passage, foreign ships, including marine scientific research and hydrographic
survey ships must not carry out any research or survey activities without the prior authorization of
the States bordering straits.
The Convention entitles the States bordering straits the right to adopt laws and regulations related
to transit passage through straits in respect of safety of navigation and marine traffic, pollution,
fishing, and loading or unloading of commodity, currency or persons. However, such laws and
regulations must not discriminate in form or in fact among foreign ships, or hamper or impair the
right of transit passage, and must be given due publicity.
The States bordering straits are under a duty not to hamper transit passage and to give
appropriate publicity to any danger to navigation or over-flight within or over the strait of which
they have knowledge. Moreover, they must not suspend transit passage for whatever reason.
B. The Right of Innocent Passage

According to the Convention, the regime of innocent passage applies to straits used for
international navigation, particularly those excluded from the application of the regime of transit
passage (a strait formed by an island of a State bordering the strait and its mainland where there
exists seaward of the island a route through the high seas or through an exclusive economic zone of
similar convenience with respect to navigational and hydrographical characteristics), or those
connect a part of the high seas or an exclusive economic zone and the territorial sea of a foreign
State.
The right of innocent passage granted to ships and aircraft in these straits are governed by the
provisions of the Convention related to the right of innocent passage in the territorial sea, except that
no suspension of innocent passage through such straits is permitted, for whatever reason.
SECTION 4: THE EXCLUSIVE ECONOMIC ZONE

The 1982 Convention provides that the exclusive economic zone is an area beyond and adjacent
to the territorial sea, subject to the specific legal regime established by the Convention. The
exclusive economic zone, as the Convention provides, should not extend beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured. In this zone, the
Convention establishes sovereign rights and jurisdiction for the coastal States, as well as, rights and
freedoms for other States.
Under the Convention, the coastal State has, in the exclusive economic zone, sovereign rights for
the purpose of exploring and exploiting, conserving and managing the natural resources, whether
living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and
with regard to other activities for the economic exploitation and exploration of the zone, such as the
production of energy from the water, current and winds. The coastal State also has the jurisdiction
with regard to: the establishment and use of artificial islands, installations and structures; marine
scientific research; and the protection and preservation of the marine environment. In exercising its
rights and performing its duties under the Convention in the exclusive economic zone, the coastal
State should have due regard to the rights and duties of other States and should act in a manner
compatible with the provisions of the Convention.
All States, whether coastal or land-locked States, enjoy, subject to the relevant provisions of the
Convention, the high seas freedom of navigation, over-flight and of laying of submarine cables and
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pipelines in the exclusive economic zone. In exercising their rights and performing their duties
under the Convention in the exclusive economic zone, States should have due regard to the rights
and duties of the coastal State and should comply with the laws and regulations adopted by the
coastal State in accordance with the provisions of the Convention and other compatible rules of
International Law.
The Conventions provides that in cases of conflict over rights or jurisdiction of the coastal State
or of other States within the exclusive economic zone, the conflict should be resolved on the basis of
equity and in the light of all the relevant circumstances. As regarding the delimitation of the
exclusive economic zone between States with opposite or adjacent coasts, the Convention provides
that it should be effected by agreement on the basis of International Law; if no agreement can be
reached within a reasonable period of time, the States concerned should resort to the procedures of
settlement of disputes provided for in the Convention.
SECTION 5: THE CONTINENTAL SHELF

The 1982 Convention defines the continental shelf of the coastal State as ―the sea-bed and subsoil
of the submarine area that extend beyond its territorial sea throughout the natural prolongation of its
land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend to that distance‖.] Where the continental margin extends beyond
200 miles, the Convention provides that the continental shelf should not extend more than 350
nautical miles from the baselines or 100 nautical miles from the 2500 meter depth. The continental
margin, as the Convention provides, comprises the submerged prolongation of land mass of the
coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise; it, however,
does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
As regarding the delimitation of the continental shelf between States with opposite or adjacent
coasts, the Convention provides that it should be effected by agreement on the basis of International
Law; if no agreement can be reached within a reasonable period of time, the States concerned
should resort to the procedures of settlement of disputes provided for in the Convention.
In the continental shelf, the Convention establishes sovereign rights for the coastal States and
rights and freedoms for other States, as well as, imposes duties on them. The coastal State may
exercise over the continental shelf sovereign rights for the purpose of exploring it and exploiting its
natural resources. Such rights are exclusive in the sense that if the coastal State does not explore the
continental shelf or exploit its natural resources, no one may undertake these activities without the
express consent of the coastal State. The coastal State has the exclusive right to construct and to
authorize and regulate the construction, operating and use of artificial islands, installations and
structures on the continental shelf, as well as, to authorize and regulate drilling on the continental
shelf for all purposes. It has the right to establish reasonable safety zones around its installations to a
limit of 500 meters, which must be respected by ships of all States.
The Convention provides that the rights of the Coastal State over the continental shelf do not
depend on occupation or any express proclamation, and do not affect the legal status of the
superjacent waters or of the air above those waters. In exercising its rights over the continental shelf,
the convention requires from the coastal State not to infringe or result in any unjustifiable
interference with navigation and other rights and freedoms of other States as provided for in the
Convention (such as the laying or maintenance of cables or pipelines). Moreover, the Convention
imposes upon the coastal State to pay to the International Sea-Bed Authority annual payments or
contributions in kind in respect of the exploitation of the nonliving resources of the continental shelf
beyond 200 miles; such payments or contributions shall be distributed by the Authority to the States
parties to the Convention, on the basis of equitable sharing criteria, taking into account the interests
and needs of developing States, particularly the least developed and the land-locked among them.
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Under the Convention, all States are entitled to lay cables and pipelines on the continental shelf,
in accordance with the relevant provisions of the Convention.
SECTION 6: THE HIGH SEAS

The 1982 Convention defines the high seas as ―all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the
archipelagic waters of an archipelagic State.‖ Under the Convention the high seas are open to all
States, whether coastal or landlocked, and that the freedom of the high seas is exercised under the
conditions laid down by the Convention and other rules of International Law. Such a freedom
comprises inter alia the freedom of navigation, over-flight, the laying of submarine cables and
pipelines, the construction of artificial islands and other installation permitted under International
Law, fishing, and the conduct of scientific research. These freedoms must be exercised by all States
with due regard for the interests of other States in their exercise of the freedom of the high seas, and
also with due regard for the rights under the Convention concerning activities in the International
Sea- Bed Area.
Moreover, the high seas shall be reserved for peaceful purposes. No State may purport to subject
any part of the high seas to its sovereignty. Every State, whether coastal or land-locked, has the right
to sail ships flying its flag on the high sea, to exercise its jurisdiction in civil and penal matters, and
to exercise control in administrative, technical and social matters over them.
SECTION 7: LAND-LOCKED STATES

―Land-locked State‖ means a State which has no sea-coast. The 1982 Convention provides that
land-locked States have the right of access to and from the sea for the purpose of exercising the rights
provided for in the Convention including those related to the freedom of the high seas and the
common heritage of mankind, the right of innocent passage in the territorial sea of coastal States, the
right of transit and innocent passage in international straits, and the right of laying submarine cables
and pipelines in the continental shelf. To this end, the land-lock States enjoy freedom of transit
through the territory of transit States by all means of transport. ―Transit State‖ means a State, with
or without a sea-coast, situated between a land-locked State and the sea, through whose territory
traffic in transit passes.
The Convention provides that terms and modalities for exercising freedom of transit shall be
agreed between the land-locked States and transit States through bilateral, sub-regional or regional
agreements. For the convenience of traffic in transit, free zones or other customs facilities may be
provided at the ports of entry and exit in the transit States, by agreement between those States and
the land-locked States. Traffic in transit shall not be subject to any customs duties, taxes or other
charges except charges levied for specific services rendered in connection with such traffic. Transit
States shall take all appropriate measures to avoid delays or other difficulties of a technical nature in
traffic in transit. In the exercise of their full sovereignty over their territory, transit States shall have
the right to take all measures necessary to ensure that the rights and facilities provided for in the
Convention for land-locked States shall in no way infringe their legitimate interests.
SECTION 8: THE AREA AND THE AUTHORITY

The ―Area‖ as defined by the 1982 Convention means the sea-bed and ocean floor and subsoil
thereof, beyond the limits of national jurisdiction. Under the Convention, the Area and its resources
(solid, liquid or gaseous mineral) are deemed to be the common heritage of mankind and no
sovereign or other rights may be recognized. However, minerals recovered from the Area only in
accordance with the Convention are alienable. Activities in the Area are to be carried out for the
benefit of mankind as a whole by or on behalf of ―the International Seabed Authority‖ established
under the Convention. The Authority is to provide for the equitable sharing of such benefits.
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The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or
land-locked, without discrimination and without prejudice to the provisions of the
Convention. Marine scientific research in the Area shall be carried out, by or on behave of the
Authority, exclusively for peaceful purposes and for the benefits of mankind as a whole in
accordance with the Convention.
The International Seabed Authority (the Authority) is the autonomous organization which the
States parties to the 1982 Convention have agreed to establish in order to organize and control
activities in the Area, particularly to administer the resources of the Area. All States parties to the
Convention are ipso facto members of the Authority. The Authority became fully operational in June
1996. The seat of the Authority is in Jamaica; it may establish such regional centers or offices as it
deems necessary for the exercise of its functions.
The Authority may exercise the powers and functions which are expressly conferred upon it by
the Convention, and such incidental powers, consistent with the Convention, as are implicit in and
necessary for the exercise of those powers and functions with respect to activities in the Area. It
consists of the principal organs, which are the Assembly, the Council and the Secretariat, the
Enterprise, and certain subsidiary organs.
SECTION 9: ENCLOSED OR SEMI-ENCLOSED SEAS

Enclosed and semi-enclosed seas as defined by the 1982 Convention means a gulf, basin or sea
surrounded by two or more States and connected to another sea or the ocean by narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more
coastal States. The Convention requires the States bordering an enclosed or semi-enclosed sea to co-
operate with each other in the exercise of their rights and in the performance of their duties under
the Convention. To this end these States are required to endeavor, directly or through an
appropriate regional organization to co-ordinate: the management, conservation, exploration and
exploitation of living resources of the sea; the implementation of their rights and duties with respect
to the protection and preservation of the marine environment; their scientific research policies and
undertake where appropriate joint programmes of scientific research in the area. These States are
also required to invite, as appropriate, other interested States or international organizations to co-
operate with them.
Actually, there are more than twenty marine areas which can be regarded as enclosed or semi-
enclosed seas according to the criteria specified by the 1982 Convention. Among these areas are the
Baltic Sea, the Black Sea, the Caribbean Sea, the East China Sea, the Mediterranean Sea, the Red
Sea, the South China Sea, the Gulf of Mexico, the Gulf of Oman, and the Arabian Gulf. In
international practice, co-operation among the States bordering enclosed or semi-enclosed seas has
been taken in matters such as conservation of the living resources and marine pollution prevention
and control.
THE LEAGUE OF THE NATIONS

I. Origin and Founding of the League of Nations
The League of Nations was established at the initiative of the victorious Allied Powers after
the Paris Peace Conference of 1919 that ended the First World War. The need to establish an
international association for the preservation of peace had been felt during the First World
War. During the war, influential groups in the United States and Britain had urged the creation of
such a body. The U.S. President Woodrow Wilson strongly favored the idea as a means of
preventing another destructive world war. In his Fourteen Points summarizing Allied aims in the
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First World War, President Wilson presented a plan for a general association of nations to guarantee
political independence and territorial integrity to all nations.
The Paris Peace Conference accepted the proposal to create the League of Nations on January
25, 1919. The Covenant of the League of Nations was drafted by a special commission on which
President Wilson was a member. President Wilson was the impetus behind the creation of the
League of Nations. His plan formed the basis of the Covenant of the League of Nations. The
Covenant was formulated as Part I of the Treaty of Versailles which ended the First World War and
which was signed on June 28, 1919; accordingly, the League of Nations was established. The
League Covenant embodied the principles of collective security (joint action by League members
against an aggressor), arbitration of international disputes, reduction of armaments, and open
diplomacy.
The League was established for major purposes which were to promote international cooperation
and to achieve international peace and security. Its establishment as an organization for
international cooperation, constituted a fundamental shift from the old philosophy of European
relations. The diplomatic philosophy behind the establishment of League came to replace the old
philosophy, growing out of the Congress of Vienna (1815), which was built on shifting alliances
among nation-states, and balance of power maintained by strong armies and secret
agreements. Under the new philosophy, the League meant to be a government of governments, with
the role of settling disputes between nations in an open and legalist forum.
II. Status and Membership of the League of Nations

The League of Nations was an intergovernmental organization established to promote
international cooperation and to achieve international peace and security. It was the first of this kind
ever established by mankind. It existed from 1920 to 1946.
The League held its first meeting in London on 10 January 1920. Its first action was to ratify
the Treaty of Versailles, officially ending the First World War. The headquarters of the League
moved to Geneva on November 1, 1920, where the first general assembly of the League was held
on November 15, 1920 with representatives from 41 nations in attendance. Its last meeting was held
on April 8, 1946; at that time the league was superseded by the United Nations (UN).
The original members of the League of Nations were those of the signatories named in the Annex
to the Covenant and also such of those other states named in the Annex as would accede without
reservation to the Covenant. Initially, the Covenant of the League of Nations was signed by
44 states, including 31 states which had taken part in the war on the side of the Allied Powers or
joined them during the war (neutral and enemy nations had been initially excluded). Despite
President Wilson's efforts to establish and promote the League, for which he was awarded the Nobel
Peace Prize in 1919, the United States neither ratified the Covenant nor joined the League due to
opposition from isolationists in the U.S. Senate.
Moreover, the Covenant provided that any fully self-governing State, Dominion or Colony not
named in the Annex might become a Member of the League if its admission was agreed to by two-
thirds of the Assembly, provided that it would give effective guarantees of its sincere intention to
observe its international obligations, and would accept such regulations as might be prescribed by
the League in regard to its military, naval and air forces and armaments.
The Covenant provided that any Member of the League might, after two years' notice of its intention
so to do, withdraw from the League, provided that all its international obligations and all its
obligations under this Covenant had been fulfilled at the time of its withdrawal. It also provided that
any member who had violated any provisions of the Covenant might be declared to be no longer a
member of the League by a vote of the Council concurred in by the representatives of all other
members of the League represented thereon.
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The League of Nations had 42 founding members excluding United States of America which did
not join the League, although American diplomats encouraged the league's activities and attended
its meetings unofficially. 16 of founding members left or withdrew from the League; Yugoslavia was
the only founding member to leave the League and return to it later and remained until the end. In
the founding year six other states joined, only two of them remained members until the end. In later
years 15 more states joined, three of them did not stay until the end. Egypt was the last state to join
in 1937. The Union of Soviet Socialist Republics was expelled from the league five years after it
joined on December 14, 1939. Iraq was the only member of the League that was under its mandate;
it became a member in 1932. In conclusion, during the League‘s 26 years, a total of 63 nations
joined the League; 28 were members for the entire period.
III. Purposes and Principles of the League of Nations

In the preamble of the Covenant, the contracting parties agreed on the principles through which they
could promote international cooperation and achieve international peace and security which
constituted the main purpose of the League of Nations. The agreed principles were:
1. The acceptance of obligations not to resort to war,
2. The prescription of open, just and honorable relations between nations,
3. The firm establishment of the understandings of international law as the actual rule of conduct
among Governments, and
4. The maintenance of justice and the respect for all treaty obligations in the dealings of organized
peoples with one another.
Moreover, in the articles of the Covenant, the Members elaborated on their major undertakings:
1. The Members recognized that the maintenance of peace required the reduction of national
armaments to the lowest point consistent with national safety and the enforcement by common
action of international obligations. In this regard they entrusted the Council with the power to
formulate plans for such reduction. Such plans would be subject to reconsideration and revision at
least every ten years.
2. The Members undertook to respect and preserve as against external aggression the territorial
integrity and existing political independence of all Members of the League. In case of any such
aggression or in case of any threat or danger of such aggression the Council should advise upon the
means by which this obligation should be fulfilled.
3. The Members agreed that any war or threat of war, whether immediately affecting any of the
Members of the League or not, should be declared a matter of concern to the whole League, and the
League should take any action that might be deemed wise and effectual to safeguard the peace of
nations. In case any such emergency should arise the Secretary General should on the request of any
Member of the League forthwith summon a meeting of the Council.
4. The Members agreed to submit any dispute between them either to arbitration or judicial
settlement or to enquiry by the Council, and they agreed in no case to resort to war until three
months after the award by the arbitrators or the judicial decision, or the report by the Council. In
any case the award of the arbitrators or the judicial decision required to be made within a reasonable
time, and the report of the Council shall be made within six months after the submission of the
dispute.
5. The Members agreed to carry out in full good faith any award or decision that might be
rendered, and that they would not resort to war against a Member of the League which complied
therewith. In the event of any failure to carry out such an award or decision, the Council was
required to propose what steps should be taken to give effect thereto.
In addition, subject to and in accordance with the provisions of international conventions existing
or hereafter to be agreed upon, the Members of the League undertook:
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1. To secure and maintain fair and humane conditions of Labour for men, women, and children,
both in their own countries and in all countries to which their commercial and industrial relations
extend, and for that purpose would establish and maintain the necessary international organizations;
2. To secure just treatment of the native inhabitants of territories under their control;
3. To entrust the League with the general supervision over the execution of agreements with
regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;
4. To entrust the League with the general supervision of the trade in arms and ammunition with
the countries in which the control of this traffic is necessary in the common interest;
5. To make provision to secure and maintain freedom of communications and of transit and
equitable treatment for the commerce of all Members of the League. In this connection, the special
necessities of the regions devastated during the war of 1914-1918 shall be borne in mind;
6. To take steps in matters of international concern for the prevention and control of disease.
IV. Organizational Structure of the League of Nations

The League consisted of three principal organs, namely the Secretariat, the Council and the
Assembly, and many agencies and commissions.
1. The Assembly
The Assembly consisted of Representatives of the Members of the League. Each member state
had one vote. The Assembly held its sessions once a year in September. The Assembly had the
authority to deal at its meetings with any matter within the sphere of action of the League or
affecting the peace of the world.
Decisions of the Assembly on important matters required the agreement of all the Members of the
League represented at the meeting. All matters of procedure at meetings of the Assembly required
to be decided by a majority of the Members of the League represented at the meeting.
2. The Council
The League Council had the authority to deal with any matter within the sphere of action of the
League or affecting the peace of the world. The Council began with four permanent members
(Great Britain, France, Italy, Japan) and four non-permanent members elected by the Assembly
every three years. The first four non-permanent members
were Belgium, Brazil, Greece and Spain. United States was meant to be the fifth permanent
member, but the United States Senate voted on March 19, 1920 against the ratification of the Treaty
of Versailles, so the fifth permanent seat was taken by China. Germany joined the League and
became a sixth permanent member of the Council on September 8, 1926, taking the Council to a
total of fifteen members. With the departure of Germany and Japan from the League, their places
were taken by new non-permanent members.
The Council met in ordinary sessions four times a year, and in extraordinary sessions when
required. In total, 107 public sessions were held between 1920 and 1939. Decisions of the Council
on important matters required the agreement of all the Members of the Council represented at the
meeting (a unanimous vote by the Council), while decisions on matters of procedure required a
majority of the Members represented at the meeting.
3. The Secretariat
The Secretariat was the administrative organ of the League (acting as the civil service for the
League). It was located in Geneva, Switzerland. It was headed by the Secretary General. The staff
of the League's secretariat was responsible for preparing the agenda for the Council and the
Assembly and publishing reports of the meetings and other routine matters. The General Secretary
wrote annual reports on the work of the League.
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Over the life of the League from 1920–1946, the three Secretaries General were: Sir James Eric
Drummond (U.K.) (1920-1933);Joseph Avenol (France) (1933-1940); Seán Lester (Ireland) (1940-
1946).
Other Bodies
The Permanent Court of International Justice and several other agencies and commissions were
created by the League of Nations to deal with pressing international problems. The agencies and
commissions were: the Disarmament Commission, the Health Organization, the International
Labour Organization, the Mandates Commission, the Permanent Central Opium Board, the
Commission for Refugees, and the Slavery Commission. While the League itself generally failed to
achieve its mission, several of its agencies and commissions succeeded in their respective missions.
Several of these institutions were transferred to the United Nations (UN) after the Second World
War. The International Labour Organization was brought into affiliation with the UN. The
Permanent Court of International Justice became a UN institution as theInternational Court of
Justice. The Health Organization was restructured as the World Health Organization.
V. Successes and Failures of the League of Nations

The League of Nations was the first intergovernmental organization for cooperation among
nations. It provided a focal point for intergovernmental organizations and also for the growing
network of nongovernmental agencies. It significant successes were the establishment of the
Permanent Court of International Justice and many international agencies and commissions dealing
with various matters of international concern.
In the field of international peace and security, the League succeeded in settling minor
international disputes, and experienced no serious challenges to its authority. Example of such
miner disputes were: the dispute between Sweden and Finland over Land Islands; the border dispute
between Albania and Yugoslavia; the dispute between Germany and Poland over Upper Silesia; the
dispute between the League and Poland over Memel; the dispute between Greece and Bulgaria; the
dispute between France and Germany over Saar; and the dispute between Iraq and Turkey over
Mosul.
However, the League generally failed in its mission to achieve disarmament, prevent war, settle
major disputes through diplomacy, and improve global welfare. It failed to settle the disputes over
Cieszyn (between Poland and Czechoslovakia), Vilna (between Poland and Lithuania), Ruhr
(between France and Belgium on one side and Germany on the other side), and the island of Corfu
(between Italy and Greece). It also failed to prevent the Japanese invasion of Manchurian (China)
in 1931, the Chaco War between Bolivia and Paraguay in 1932, the Italian invasion of Abyssinia in
1935, and the Spanish Civil War in 1936. Above all, it failed to prevent Axis rearmament which
constituted a major event led to the outbreak of the Second World War.
The League also worked to combat international trade in opium and sexual slavery and helped
alleviate the plight of refugees, particularly in Turkey during the 1920s.
The failure of the League of Nations in achieving its objectives was the result of the following:
(1) The League lacked an armed force of its own. It depended on the Great Powers to enforce its
resolutions, which they were reluctant to do. Its two most important members, the United Kingdom
and France, were reluctant to use sanctions, particularly to resort to military action on behalf of the
League.
(2) The economic sanctions, which were the most severe measures the League could decide short of
military actions, were difficult to enforce and had no great impact on the sanctioned state, because it
could simply trade with states outside the League.
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(3) The Council of the League was required to adopt its resolutions by a unanimous vote of its nine
members (later fifteen members), so conclusive and effective action was difficult, if not impossible to
be taken. It was also slow on coming to its decisions. Some decisions also required unanimous
consent of the Assembly of the League, i.e., the agreement by all members of the League.
(4) The representation at the League was a problem. Although the League was intended to
encompass all nations, many never joined, or their time as members of the league were short. The
League was seriously weakened by the non-adherence of the United States of America; the U.S.
Congress failed to ratify the Treaty of Versailles (containing the Covenant). The League also further
weakened when the three permanent members of the Council, Germany, Italy and Japan, left in the
1930s.
(5) Most members of the League were occupied with the protection of their own national interests
rather than the fulfillment of their commitments to the League and its objectives.
With the outbreak of Second World War, it was clear that the League of Nations had failed in its
purpose which was to avoid any future world war. During the war, the League ceased its activities;
neither the League's Assembly nor Council was able or willing to meet, and its secretariat
in Geneva was reduced to a skeleton staff, with many offices moving to North America.
After the failure of the League of Nations to prevent war, nations of the world decided to create a
new body to fulfill the League's role, but to take it further. This body was to be the United
Nations (UN). At a meeting of the Assembly in 1946, the League dissolved itself and transferred its
services, mandates, and property to the UN. Many League bodies, for instance the International
Labor Organization, continued to function and eventually became affiliated with the UN.
DIPLOMATIC AND CONSULAR LAW

Rules regulating the various aspect of diplomatic relations are the result of centuries of States
practice. They constitute one of the earliest expressions of International Law. Whenever in history
there have been independent States coexisting, special customs have developed on how the
representatives of one State would be treated by other State.
Traditionally, diplomatic relations have been conducted through ambassadors and their
staffs. However, with the growth of trade and commercial transactions the office of consul was
established.
Today, diplomats and consuls perform useful functions in the host states. They provide
permanent presence in host States, pursue friendly relations between their States and the host States,
and promote the various interests of their States in the host states.
Because of the important roles played by diplomats and consuls in international relations, it is
necessary to treat this subject in the following two sections. Thus, section one is devoted to
diplomatic mission, while section two is devoted to consular post.
SECTION 1: DIPLOMATIC MISSION
Today, all States are represented in foreign States by diplomatic representatives. These
diplomatic representations are of a permanent nature, although representatives are changeable.
The emergence of permanent as distinct from temporary diplomatic missions is dated back to the
th
17 Century. Rules related to rights, duties, privileges and immunities of diplomatic representatives
were developed through customs in the 18th Century. In the early 19th Century, some common
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understandings on the rules were reached to at the Congress of Vienna of 1815. Developments of
diplomatic rules have continued since that date. The new and the most extensive codification of the
diplomatic law was achieved in 1961 by the conclusion of the Vienna Convention on Diplomatic
Relations.This Convention both codified existing rules and established others. It laid down rules
related to classes of heads of a diplomatic mission, members of a mission, appointment and
reception of the head of a mission, functions of a mission, the privileges and immunities of a mission
and its members, the duties of the members of a mission, the duties of the receiving State, and the
termination of the mission. It provided that matters not regulated by the Convention continue to be
governed by the rules of customary International Law. In the following, all these rules are dealt
with.
A. Members of a Mission and Classification of Heads of a Mission
Under the 1961 Vienna Convention on Diplomatic Relations, members of the diplomatic mission
are the following:
(1) The head of the mission: The person who is charged by the sending State with the duty of
acting in that capacity.
(2) Members of the diplomatic staff: The members who have diplomatic rank.
(3) Members of the administrative and technical staff: The members who are employed in the
administrative and technical service of the mission.
(4) Members of service staff: The members who are employed in the domestic service of the
mission.
The Convention divided Heads of diplomatic missions into three classes, namely:
(1) Ambassadors accredited to Heads of States.
(2) Special envoys and ministers accredited to Heads of States.
(3) Charges d’affaires accredited to Ministers for Foreign Affairs.
The class to which the head of a mission is assigned is a matter of agreement between the
concerned States. Except as concerns precedence and etiquette, there is no differentiation between
heads of a mission by reason of their class. However, heads of missions are to take precedence in
their respective classes in the order of the date and time of taking up their functions.
B. Appointment of Heads and Diplomatic Members of the Missions
Under the Convention, the appointment of a diplomatic agent (the head of the diplomatic
mission or any member of the diplomatic staff) is subject to the agreement of the receiving States
which has the right to refuse the appointment of any particular person without being obliged to give
reasons. Because of the possibility of refusing the proposed person, it is the practice of States that
the sending State usually notifies the receiving State of the name of the person proposed to be
appointed a diplomatic agent. When the receiving State gives its consent to the proposed person,
then the sending State can proceed with the formal appointment of the diplomat and accredit
him. Accreditation is done by furnishing the head of the mission or any member of the diplomatic
staff with certain official papers known as ―letter of credence‖ or credentials. The credentials of the
head of a mission are presented to the Head of the receiving State in a ceremonial reception.
It is still, however, that the receiving state can at any time without obliged to explain its decision
to notify the sending State that a particular diplomat is persona non grata; in such case, he should be
recalled and his functions should be terminated.
C. Functions of the Diplomatic Mission

The functions of a diplomatic mission as stated by the Convention consist among other things of:
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(1) representing the sending State in the receiving State;
(2) protecting in the receiving State the interests of the sending state and its nationals, within the
limits permitted by International Law;
(3) negotiating with the Government of the receiving State;
(4) ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State;
(5) promoting friendly relations between the sending State and the receiving State, and developing
their economic, cultural and scientific relations.
In addition to these functions, the diplomatic mission can perform consular functions since
nothing in the Convention prevents it from performing such functions.
D. Privileges and Immunities of a Diplomatic Agent
The Convention grants the head of the diplomatic mission and members of the diplomatic staff of
the mission as well as members of their families certain privileges and immunities from jurisdiction
of the receiving State. It has been the practice that an ambassador to a certain State submits to the
Ministry for Foreign Affairs of that State a list containing the names of members of the diplomatic
mission with their positions, ranks and functions, and the names of persons who should be granted
full or limited immunity.
The most important privileges and immunities granted to a diplomatic agent (the head of the
mission and members of diplomatic staff) are:
(1) A complete immunity from the criminal jurisdiction of the receiving State;
(2) Immunity from the civil and administrative jurisdiction of the receiving state, except in the case
of:
i. a real action related to private immovable property situated in the territory of the receiving state,
unless he holds it on behalf of the sending State for the purpose of the mission.
ii. an action related to succession in which he is involved as executor, administrator, heir or legatee
as a private person and not on behalf of the sending State;
iii. an action related to any professional or commercial activity exercised by him in the receiving
State outside his official functions.
(3) The inviolability of his person.
(4) Exemption from all dues and taxes, personal or real, national, regional or municipal in the
receiving state, except indirect taxes, taxes and dues on private immovable, dues on inheritance,
dues and taxes on private income, and charges levied for specific services rendered;
(5) Freedom of communication for official purposes;
(6) The right to move freely in the territory of the receiving State.
(7) The inviolability of his private residence.
(8) The inviolability of his papers, correspondence and property
The above privileges and immunities are enjoyed by a diplomatic agent from the moment he
enters the territory of the receiving State on proceeding to take up his post or, if already in its
territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs. He
also enjoys such privileges and immunities when passes through or is in the territory of a third State
on proceeding to take up or to return to his post, or when returning to his own country.
The immunity from jurisdiction granted to a diplomatic agent is immunity from the jurisdiction
of the receiving State and not from liability. He is not immune from the jurisdiction of the sending
State. Moreover, he can be sued in the receiving state after a reasonable time elapses from the
ending of his mission.
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The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the
sending State. The waiver must be express. However, such waiver of immunity from jurisdiction
does not imply waiver of immunity in respect of the execution of a judgment; in such case, a
separate waiver is required. Immunity may also be waived by the diplomatic agent himself, by
submitting voluntarily to the jurisdiction of the court of the receiving State.
Members of the family of a diplomatic agent, if they are not nationals of the receiving State,
likewise enjoy the same privileges and immunities. The same privileges and immunities, with
certain exceptions, is enjoyed by members of the administrative and technical staff of the mission,
together with members of their families forming part of their respective households, if they are not
nationals or permanent residents of the receiving State. Members of the service staff who are not
nationals or permanent residents of the receiving State enjoy immunity from jurisdiction only in
respect of acts performed in the course of their official duties.
As regard the mission itself, the Convention makes its premises, achieves, documents,
correspondence and diplomatic bag inviolable. Moreover, it grants the premises of the mission, their
furniture and other property thereon, and the means of transport of the mission the immunity from
search, requisition, attachment or execution. The premises of the mission are also exempt from all
national, regional or municipal dues and taxes, other than such as represent payment for specific
services rendered
E. Termination of a Diplomatic Mission or of the Functions of a Diplomatic Agent
A diplomatic mission or the functions of a diplomatic agent may be terminated permanently or

temporary by various means and for various reasons, some are stated in the Convention and others
are established by States practice. Among these means and reasons are the following:
(1) Breaking off the diplomatic relations between the sending and the receiving States because of
a war or any other reason.
(2) A recall of the diplomatic agent by his sending State upon its initiative, or at the request of the
receiving State.
(3) A notification by the sending State to the receiving State that the functions of the mission or
the diplomatic agent has come to its end.
(4) A notification by the receiving State that the diplomatic agent is a persona non grata.
(5) Resignation of the diplomatic agent.
(6) Death of the diplomatic agent.
SECTION 2: CONSULAR POST
The institution of consular post is much older than that of diplomatic mission. The modern
system of consular post is dated back to the 16th Century. The 1963 Vienna Convention on Consular
Relations is the law governing consular representation. A consular officer (any person, including the
head of the consular post, entrusted with the capacity to exercise consular functions) like a
diplomatic agent, represents his State in the receiving State. However, unlike a diplomatic agent, he
is not concerned with political relations between the two States, but with a variety of administrative
functions, such as issuing visas and passports, looking after the commercial interests of his State, and
assisting the nationals of his State in distress.
In the following, the rules governing consular relations, namely members of the consular post,
classification of the head of the post, the appointment of consular officers, functions of the consular
post, privileges and immunities of consular officers, and the termination of post, are dealt with.
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A. Members of the Consular Post and Classification of the Heads of the Post
The members of the consular post as stated by the 1963 Vienna Convention are:
(1) The head of the post: The person charged by the sending State with the duty of acting in that
capacity.
(2) Consular officers, other than the head of the consular post: Persons entrusted to exercise
consular functions.
(3) Consular employees: Persons employed in the administrative and technical service of a
consular post.
(4) Members of the service staff: Persons employed in the domestic service of the consular post.
(5) Members of the private staff: Persons employed exclusively on the private service of members
of the consular post.
The heads of a consular post are divided into four classes, namely:
(1) Consuls-General.
(2) Consuls.
(3) Vice-Consuls.
(4) Consular agents.
The class to which a head of a consular post is assigned is a matter of agreement between the
concerned states.
B. Appointment of a Head of the Consular Post
The head of a consular post is appointed by the sending State and is admitted to exercise his
functions by the receiving State. The sending State normally notify the appointment of a consul to
the receiving State which has the right either to issue an ―exequatur‖ or refuse to issue it without
obliged to give reasons. The exequatur is a written official recognition and authorization of the
consul. If the receiving State has no objection against the appointment, the exequatur is
issued. Normally, a consul does not take his post until receiving an exequatur. If subsequently, an
objection is raised, the receiving State may notify the appointing State that the consul is no longer
acceptable. Then the appointing State must recall him, if it does not, the receiving State may
withdraw the exequatur. Furthermore, a receiving State may notify the sending State that any
member of the consular post is not acceptable.
C. Functions of a Consular Post
Consular post is different from diplomatic mission in its functions. While diplomatic mission is
concerned with political relations between the two States, the consular post exercises a variety of
administrative functions. Furthermore, while there is only one diplomatic mission in a State, there
can be more than one consulate in one State. The major functions of consular posts are:
(1) Protecting the interests of the sending State and its nationals in the receiving State.
(2) Furthering the development of commercial, economic, cultural and scientific relations
between the sending State and the receiving State.
(3) Promoting friendly relations between the sending State and the receiving State.
(4) Reporting to the sending State on the conditions and developments of the commercial,
economic, cultural and scientific life of the receiving State, and giving such information to interested
persons.
(5) Issuing passports and travel documents to nationals of the sending State, and giving visas to
persons wishing to travel to that State.
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(6) Helping and assisting nationals of the sending State, safeguarding their interests in certain
cases, and representing or arranging for their representation before the courts and other authorities of
the receiving State.
(7) Transmitting judicial and extra-judicial documents to the receiving State.
(8) Exercising a supervision and inspection powers over vessels and aircrafts having the
nationality of the sending State, and over the crews of these vessels and aircrafts.
(9) Acting as notary and civil registrar, and performing certain functions of administrative
nature.
A consular post can perform other functions entrusted to it by the sending State which are not
prohibited by the laws and regulations of the receiving State, not objected by the receiving State, or
referred to in the international agreements in force between the sending state and the receiving State.
D. Privileges and Immunities of Consular Officers
Nowadays, many States combine its diplomatic and consular services together. Thus, a person
who acts simultaneously as a diplomatic agent and a consular officer enjoys the diplomatic privileges
and immunities under the 1961 Vienna Convention on Diplomatic Relations. If the consular
functions are exercised by the consular post, then the consular officer enjoys the consular privileges
and immunities under the 1963 Vienna Convention on the Consular Relations.
Under the 1963 Vienna Convention on the Consular Relations, consular posts, members of a
consular post (consular officers and employees), members of their families and members of their
private staff enjoy certain privileges and immunities. These privileges and immunities are less than
what diplomatic mission and diplomatic agents are entitled to. The most important privileges and
immunities are the following:
(1) A consular officer (the head of the consular post and any person entrusted to exercise
consular functions) is immune from an arrest or detention pending trial, except in the case of a grave
crime and pursuant to a decision by the competent judicial authority. He is immune from
imprisonment or any other restriction on his personal freedom save in execution of a final judicial
decision. If criminal proceedings are instituted against him, he must appear before the competent
authorities. The proceedings must be conducted in a manner that respects his official position and
does not hamper the exercise of consular functions, and with the minimum delay.
(2) A consular officer and a consular employee (any person employed in the administrative or
technical service of the consular post) are immune from the jurisdiction of the judicial or
administrative authorities of the receiving State only in respect of acts performed in exercise of
consular functions. However, they do not enjoy such immunity in respect of a civil action either:
i. Arising out of a contract concluded by them not as agents of the sending State; or
ii. Brought by third party for damages arising from an accident in the receiving State caused by
vehicle, vessels or aircraft.
(3) A consular officer and a consular employee and members of their families forming part of
their households are exempt from all dues and taxes, except on certain specified cases.
(4) A member of the consular post (the head of the post, any person entrusted to exercise
consular functions, any person employed in administrative or technical service of the post and in the
domestic service of the post) is under no obligation to give evidence concerning matters connected
with the exercise of his functions or to produce official correspondence and documents related
thereto. He is also entitled to decline to give evidence as expert witness with regard to the law of the
sending state.
(5) A member of the consular post enjoys the freedom of communication for official purposes.
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(6) A member of the consular post enjoys the right to move freely in the territory of the
receiving State.
(7) The archives, documents, official correspondence and consular bag are inviolable at any
time and whenever they may be.
(8) The premises of the consular post and the private residences of members of the consular
post are inviolable. They are, also, exempt from all taxes and dues other than such as represent
payment for specific services.
The above privileges and immunities are enjoyed by the member of the consular post from the
moment he enters the territory of the receiving State on proceeding to take up his post or, if already
in its territory, from the moment when he enters on his duties. The same privileges and immunities
are enjoyed by members of the families of the members of the consular post.
The privileges and immunities of the consular post may be waived by the sending State. The
waiver must be express and be communicated to the receiving State in writing. However, the waiver
of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply
waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is
required. Immunity may also be waived by the member of the consular post himself, by submitting
voluntarily to the jurisdiction of the court of the receiving State.
E. Termination of a Consular Functions
The consular functions may be terminated by various ways and reasons. Among these ways and
reasons are the following:
(1) A recall of the member of the consular post by his appointing State upon its initiative, or at the
request of the receiving State.
(2) A notification by the appointing State to the receiving State that the functions of the post or
any of its members are terminated.
(3) The withdrawal of the exequatur by the receiving State.
(4) Resignation of the member of the consular post.
(5) Death of the member of the consular post.
(6) The breaking off relations between the sending and receiving States, such as in case of a war.
94

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International Law Detailed Notes for CSS 2018

Political Science (Lahore University of Management Sciences)

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Compiled by Aamir Mahar

International Law Detailed Notes

Compiled by Aamir Mahar

II. STATUS AND MEMBERSHIP OF THE EU

III. PRINCIPLES OF THE EU

IV. OBJECTIVES OF THE EU

V. ORGANIZATIONAL STRUCTURE OF THE EU

Compiled by Aamir Mahar

2) Council of the European Union

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3) European Parliament (EP)

4) The European Court of Justice (ECJ)

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5) The European Court of Auditors

6) The European Central Bank

VI. ACHIEVEMENTS OF THE EU

Compiled by Aamir Mahar

RECOGNITION AND ITS TYPES

SECTION 1: DEFINITION AND NATURE OF RECOGNITION

Recognition is a discretionary unilateral act exercised by the government of a State officially

Compiled by Aamir Mahar

SECTION 2: TYPES AND FORMS OF RECOGNITION

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(A) Recognition of a State and of a Government

(B) Recognition of Belligerency

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(C) De Jure and De Facto Recognition

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Whatever the type of recognition, once given may in certain circumstances be

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(D) Express and Implied Recognition

SECTION 3: LEGAL EFFECTS OF RECOGNITION

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(A) International effects of recognition

(B) Internal Effects of Recognition

SOURCES OF PUBLIC INTERNATIONAL LAW

Compiled by Aamir Mahar

In the following sections, these sources are discussed.

Compiled by Aamir Mahar

3. General Principles of Law

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5. Writings of legal scholars

6. Ex aequo et bono (Equity)

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7. Acts of International Organizations

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THE COLD WAR

CAUSES OF THE COLD WAR:

THE END OF THE COLD WAR:

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THE EFFECTS OF THE COLD WAR:

TIMELINE OF THE COLD WAR:

Compiled by Aamir Mahar

Compiled by Aamir Mahar

A STATE AS A SUBJECT OF INTERNATIONAL LAW

SECTION 1: DEFINITION AND REQUIREMENTS OF STATEHOOD

Compiled by Aamir Mahar

(a) A Permanent Population