This introduction is written to provide students with an overview of international law I at the outset of their study so that they can understand the
structure of the international legal system and the principles governing the main topics before they begin a detailed study of any topics. This document only discusses the general principles. In many cases it oversimplifies international law by summarizing it in less than one page what is covered in an entire chapter in an international law textbook. However, it is hoped that it will give students an overview of the major topics and principles so they can better understand how the particular chapters or topics fit or link together.B.
Definition of International law
International Law consists of the rules and
principles of general application dealing with the conduct of States and of
international organizations, and with their relations with each other, as well
as with some of their relations with private individuals, minority groups and
transnational companies. Put simply, international law is simply the set of
rules that countries follow when dealing with each other. It also serves as a
framework for the practice of stable and organised international relations.
C.
International Legal Personality
International legal personality refers to the
entities or legal persons that can have rights and obligations under
international law. Some of the international personalities under international
law include:
1.
States
A
State is an entity with the following characteristics:
(1) a permanent population;
(2) a defined territory;
(3) a government; and
(4) the capacity to enter into relations with
other States.
(5) independent of the authority of any other
state
Many writers argue that a State must also be
independent of the authority of any other State. Some writers also argue that
an entity is not a State until it has been recognized as such by other States
(however there is continued debate on how such recognition is done); even
though it is admitted that recognition is a political rather than legal act. A
State is the term used in international law, although the terms - nation
states, nations and countries are also used on occasion.
The international legal system is a horizontal
legal system dominated by States. States are in principle considered as being
sovereign and equal. International law is predominately made and implemented by
States. Only States can have the following privileges:
(1) sovereignty over territory,
(2) become members of the United Nations and
other international organizations,
(3) have access to the International Court of
Justice to settle their disputes.
(4) become parties to treaties.
2.
International
Organizations
International Organizations are established by
States through international agreements for particular purposes. They have only
such powers as are conferred on them by States in their constituent document. International
organizations have a limited degree of international personality, especially
vis-Ã -vis member States. They can enter into international agreements and their
representatives have certain privileges and immunities. The constituent
document may also provide that member States are legally bound to comply with
decisions on particular matters.
The powers of the main political and legal organs
of the United Nations are set out in the United
Nations Charter- 1945. The main political organ, the UN General Assembly, is
not a world legislature. The authority of the UN General Assembly on most matters
(such as human rights and economic and social issues) is limited to discussing
issues and making recommendations. The Security Council has the authority under
the United Nations Charter to make decisions that are binding on all member
States when it is performing its primary responsibility of maintaining
international peace and security.
The main UN judicial organ is International Court
of Justice (ICJ), which has the power to make binding decisions on questions of
international law that have been referred to it by States. However, the ICJ can hear only cases in which States
have consented to its jurisdiction.
3.
Nationality
of individuals, companies, etc.
Private individuals are generally not regarded as
legal persons with rights and duties under international law. Their link to a State
is through the concept of nationality, which is often referred to under
domestic law as citizenship. Nationality is the status of being treated as a
national of a State for particular purposes. Under international law, each
State has wide discretion to determine which individuals should be considered
its nationals. The most common methods of acquiring nationality are at birth where
one or both parents and/or by the place of birth. Nationality can also be
acquired by adoption and naturalization. Nationals of a State carry a travel
document called a passport when they
travel from one State to another State.
Companies, ships, aircrafts and spacecrafts are
usually considered under international law as having the nationality of the
State in whose territory they are registered. This is important because in many
circumstances States may have international obligations to regulate the conduct
of their nationals, especially if they are carrying out act activities outside
their territory.
D.
Sovereignty of States over Territory
Sovereignty is the exclusive right to exercise supreme political authority
(legislative, judicial and executive) over a defined territory and the people
within that territory. Since it is the exclusive right, it means that no other
State can have formal political authority within that State. Therefore,
sovereignty is closely associated with the concept of political independence.
States have sovereignty over their land territory and
over the airspace above their land territory. The
land territory includes off-shore islands if they are naturally formed areas of
land which are above water at high tide. States also have sovereignty in a belt
of sea adjacent to its coast called the territorial sea, as well as the air
space above the territorial sea and the seabed and subsoil below the
territorial sea. However, the sovereignty of States over their territorial sea
is subject to limitations. For example, ships of all States have the right of
innocent passage through the territorial sea.
Classical international law developed doctrines
by which States could make a valid claim of sovereignty over territory. The
doctrines included discovery and occupation
and prescription.
During the period of Western colonial expansion new territories and islands
were subject to claims of sovereignty by discovery and occupation. Sovereignty
could also be transferred to another State by conquest (use of force)
or by cession. If the Western colonial powers recognized a ruler in
an overseas territory as the sovereign, they would often enter into a treaty of cession with the ruler by
which sovereignty over the territory would be ceded in to the Western colonial
power. Problems often developed because the people in those territories did not
understand the concepts of sovereignty and cession.
Since a State has sovereignty
over its territory, the entry into its territory by the armed forces of another
State without consent is a prima facie
breach of international law, and often will be interpreted as an act of
aggression. Among the attributes of sovereignty is the right to exclude
foreigners from entering the territory, which is traditionally referred to as
the right to exclude aliens. Since a
State has sovereignty within its territory and territorial sea, it has the
exclusive authority to exercise police power within its territory. Therefore,
if foreign ships are attacked by “pirates” in the territorial sea of a State,
the only State that can exercise police power and arrest the pirates in the
territorial sea is the coastal State.
E.
International Obligations (Sources of
Law)
As international law developed, it became
accepted that the sources of international law were treaties, custom and
general principles of law. It is generally accepted that the sources of law are
listed in the Article 38(1) of the Statute of the International Court of
Justice, which provides that when deciding disputes submitted to it in
accordance with international law, the Court shall apply:
a)
International conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b)
International custom, as evidence of a general practice
accepted as law;
c) The
general principles of law recognized by civilized nations;
d)
Subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
1.
Treaties
The reference in paragraph a) to international
conventions refers to treaties. Treaties are written agreements between
States that are governed by international law. Treaties are referred to
by different names, including agreements, conventions, covenants, protocols and
exchanges of notes. If States want to
enter into a written agreement that is not intended to be legally binding under
the law of treaties, they often refer to it as a Memorandum of Understanding
and provide that it is not to be governed by international law. Treaties are
sometimes classified as either bilateral or multilateral. They can also be
classified as bilateral, regional and global.
The law of treaties is now set out in a global
convention, the 1969 Vienna Convention on the Law of Treaties. The 1969 Vienna
Convention sets out the basic principles of treaty law, the procedures for how
global treaties become binding and enter into force, the consequences of a
breach of treaty, and principles for interpreting treaties.
The basic principle underlying the law of
treaties is referred to by the Latin phrase pacta sunt servanda -which means
that every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
The other important principle is that under the
law of treaties, the provisions in treaties are binding only on States parties.
They are not binding on third States without their consent. However, it may be possible for some or even
most of the provisions in an international convention to become binding on all
States as rules of customary international law. This will be explained in the
next section.
There are now global conventions covering most major
topics of international law. Such conventions are open to all States and are usually
adopted at an international
conference and opened for signature.
Treaties are sometimes referred to by the place and year of adoption, e.g. the
1969 Vienna Convention. If a State
becomes a signatory to such a treaty,
it is not bound by its provisions, but it undertakes an obligation to refrain
from acts which would defeat the object and purpose of the treaty.
A State expresses its consent to be bound by the provisions of a treaty when it deposits
an instrument of accession or ratification to the official
depository of the treaty. The United Nations Secretary-General is often
the official depository. If a State is a signatory to an international
convention, the formal document it sends to the depository is called an instrument of ratification. If a State is not a signatory to an
international convention but decides to become a party, the formal document it
sends to the official depository is called an instrument of accession. The
legal effect of the two documents is the same.
A treaty usually enters into force after a certain number of States have expressed
their consent to be bound through accession or ratification. Once a State has
expressed its consent to be bound and the treaty is in force, it is referred to
as a party to the treaty. The
general rule on the interpretation of treaties is that it shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in light of its object and purpose.
As supplementary means of interpretation, recourse may be had to the
preparatory work of the treaty and the circumstances of its conclusion. The
preparatory work is usually referred to by the French term travaux préparatoires.
2.
Custom
Paragraph b) of Article 38 (1) (b) refers to
“international custom, as evidence of a general practice accepted as law”. It
has also been described as a constant and uniform usage among States which is
accepted as law. Rules of customary international law, sometimes referred to
general international law, are in principle binding on all States.
If a dispute arises between two States over the
existence of a rule of customary international law, the State alleging the
existence of the rule has the burden of proving its existence. This is done by
showing a consistent and uniform practice among States, including those States
specially affected by the rule or having the greatest interest in the matter.
For example, to examine the practice of States on military uses of outer space,
one would look in particular at the practice of the space powers, especially
the super powers.
In addition to constant and uniform usage or
practice, some ICJ cases suggest that the State attempting to prove the
existence of the rule must also present evidence of a second element called opinio
juris – this is the belief by States following the particular practice or usage
that such practice or usage is required by international law. In theory
the concept of opinio juris creates a
serious obstacle to any State attempting to prove the existence of a rule of
customary international law because it is extremely difficult to find evidence
of the reason why a State followed a particular practice of usage.
However, in practice the problem is usually not
as great as it seems. If a particular practice or usage is widespread, and
there is no contrary State practice proven by the other side, the Court often
finds the existence of a rule of customary international law. It sometimes seems to assume that opinio juris was satisfied, and it
sometimes fails to mention it. Therefore, this writer’s view is that what is
most important in proving the existence of a rule of customary international
law is finding consistent State practice, especially among the States with the
most interest in the issue, with minimal or no State practice to the
contrary.
Over hundreds of years States uniformly followed
practices in their relations with one another such as:
(a) Giving foreign diplomats in their territory
immunity from their criminal laws;
(b) Treating foreign diplomatic premises in their
territory as inviolable;
(c) Recognizing the right of innocent passage of
foreign ships in their territorial sea;
(d) Recognizing the exclusive jurisdiction of the
flag State on the high seas;
(e) Ordering its military authorities to respect
the territorial boundaries of neighboring States; and
(f) Protecting non-combatants such as civilians
and sick or wounded soldiers during international armed conflict. These usages
or customs came to be accepted as legally binding. Hence they are referred to
as rules of customary international law.
3.
General
Principles of Law
Paragraph c) of Article 38 (1) refers to General
principles of law recognized by civilized nations are often cited as a third
source of law. They are principles that can be applied by courts or tribunals
in decided cases on issues of international law. The principles are general
principles that apply in all major legal systems of the world. An example would
be the principle that persons who intentionally harm others should have to pay
compensation or make reparation.
General principles of law are usually referred to
by courts or tribunals when they must decide a legal dispute between two
States, and no treaty provision or clear rule of customary international law
exists. In such cases, the Court may fill the void by turning to general
principles of law that exist in the major legal systems in the world.
4.
Subsidiary
for the determination of rules of law
Paragraph d) of Article 38 (1) lists subsidiary
means for the determination of rules of law. Subsidiary means are not sources
of law. They are subsidiary means or evidence that can be used to prove the
existence of a rule of customary international law or a general principle of
law.
Article 38 lists only two subsidiary means, (i) the teaching of the most highly qualified
publicists and (ii) judicial
decisions. The first phrase is antiquated language that refers to the
writings of scholars who are experts in international law. The second phrase
can mean judicial decisions of international courts or tribunals. Judicial
decisions could also include decisions of the highest national courts if they
are ruling on issues of international law.
If highly qualified publicists are referred to
try to prove the existence of rule of customary international law, eminent
scholars of international law should be cited, not articles written by a
student author or a book publishing the PhD thesis of a young scholar.
Resolutions of the UN General Assembly or
resolutions adopted at major international conferences are only recommendations
and are not legally binding. However, in some cases such resolutions may be
subsidiary means for determining rules of customary international law. The weight
of such resolutions as evidence of rules of customary international law depends
upon their wording, the circumstances of their adoption, and whether they have
been adopted by consensus or without negative vote. If the resolution purports
to declare a set of legal principles governing a particular area, if it is
worded in norm creating language, and if is adopted without any negative votes,
it can be evidence of rules of custom, especially if States have in practice
acted in compliance its terms after the resolution was adopted.
Examples of UN General Assembly Resolutions which
have been treated as strong evidence of rules of customary international law
include the following:
·
GAR 217A Universal Declaration of Human Rights
(1948)
·
GAR 1514 Declaration on the Granting of
Independence to Colonial Territories and Peoples (1960) [Declaration on
De-Colonization]
·
GAR 1962 Declaration of Legal Principles
Governing Activities of States in the Exploration and Use of Outer Space (1963)
·
GAR 2131 Declaration on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Protection of their
Sovereignty (1965) [Declaration on Non-Intervention]
·
GAR 2625 Declaration on Principles of
International Law Concerning Friendly Relations and Cooperation among States in
Accordance with the Charter of the United Nations (1970) [Declaration on
Friendly Relations]
·
GAR 1970 Declaration of Principles Governing the
Sea-Bed and the Ocean Floor, and the Subsoil thereof, Beyond the Limits of
National Jurisdiction
·
GAR 3314 Resolution on the Definition of
Aggression
Some of these resolutions have also been treated
as subsequent agreement or practice of States on how the principles and
provisions of the UN Charter should be interpreted.
In addition, writers have argued that Article 38
fails to take into account the norm-creating effect of modern global
conventions. Once the international community has spent several years drafting
a major international convention, States often begin in practice to refer to
that convention when a problem arises which is governed by the convention. In
such cases, the provisions in such a convention can become evidence of the
rules of customary international law.
Furthermore, if the Convention becomes
universally accepted, and the parties include the States with the most interest
in the matters governed by the Convention, the provisions in the Convention may
become very strong evidence of the rules of custom, especially if States which
are not parties have also acted in conformity with the Convention. The stage
can be reached where the convention provisions are regarded as binding on all
States under customary international law, unless there is State practice to the
contrary. An example of such a convention would be the 1959 Vienna Convention
on Diplomatic Relations, the 1969 Vienna Convention on the Law of Treaties, and
the first ten Parts of the 1982 United Nations Convention on the Law of the
Sea.
5.
Hierarchy
of norms
In theory there is no hierarchy among the three
sources of international law listed in Article 38 (1) of the ICJ Statute. In
practice, however, when examining a dispute between two States, international
advisors usually look first to any applicable treaty rules, then to custom, and
last to general principles. Since treaty rules are the most clear and certain, they
are always the starting point.
Also, there are two types of norms or rules which
do have a higher status. First, peremptory
norms (principles of jus cogens) are norms that have been accepted and
recognized by the international community of States as so fundamental and so
important that no derogation is permitted from them. Under the law of treaties,
a treaty between States which conflicts with a principle of jus cogens is void.
Examples of jus cogens principles are a war of aggression and genocide. A war
of aggression is the use of armed force to take over another State or part of
its territory. A modern example of a war of aggression would be the 1990
invasion of Kuwait by Iraq for the purpose of annexing Kuwait and making it
part of Iraq. Genocide is the killing or other acts intended to destroy, in
whole or in part, of a national, ethnical, racial or religious group.
Second, members of the United Nations are bound
by the Article 103 of the United Nations Charter, which provides that in the
event of a conflict between the obligations of members under the UN Charter and
their obligations under any other international agreement, their obligations
under the UN Charter prevail. Therefore, when the UN Security Council acts
under Chapter Seven in performing its responsibility for maintaining
international peace and security, its decisions to impose economic sanctions
are binding on UN members and such decisions prevail over conflicting
obligation in other international agreements.
6.
Role
of the International Law Commission
The International Law Commission (ILC) was
established by the United Nations in 1948. The 34 members of the Commission are
elected by the General Assembly from among persons nominated by member States
who possess recognized competence and qualifications in both doctrinal and
practical aspects of international law. The membership of the Commission often
reflects a broad spectrum of expertise and practical experience within the
field of international law, including international dispute settlement
procedures.
The mandate of the Commission is the progressive
development and codification of international law. The Commission usually
spends many years studying areas of international law before presenting draft
articles to the UN General Assembly for adoption as a draft convention.
Rapporteurs are assigned to be responsible for drafting articles in a
particular area, and they undertake extensive studies of the practice of states
to determine whether there is a consistent and uniform practice among States. The
rapporteurs issue reports to the Commission. In addition, each draft article
that is approved by the Commission has an official commentary explaining its
object and purpose and providing essential background. When the ILC Draft Articles are approved,
they are approved together with the official commentaries.
Sometimes the official commentary to an ILC draft
article or the rapporteurs report will indicate whether that draft article is
intended to codify a rule of customary international law or is intended to
progressively develop the law on that point. Such information can be strong
evidence before a court or tribunal if you are attempting to prove or disprove
the existence of a rule of customary international law. ILC draft articles are prepared
and circulated to all members of the UN for comment.
The official commentaries to ILC draft articles
and the reports of the commission and its rapporteurs can be considered for two
purposes. First, they can be referred to as part of the travaux préparatoires
when interpreting a provision in a convention. Second, they can be referred to
as the writings of highly qualified publicists under Article 38(1)(d) as
subsidiary means for determining rules of customary international law. Given
that the Commission’s articles and official commentaries are approved by a team
of 34 international law experts from a wide variety of States, it could be
argued that the official commentaries are more valuable as evidence of the
existence of a rule of customary international law than the work of one or two individual
writers.
F.
Jurisdiction of
States
1.
Principles
of Jurisdiction
The jurisdiction refers to the power of a State
to prescribe and enforce laws through its legal institutions. The justification
for a State extending its criminal and regulatory laws to particular activities
is based on several principles. Almost all States claim jurisdiction based on
the territorial principle, under
which a State has jurisdiction over activities within its territory. Some
states also claim jurisdiction over activities outside its territory which
affect its territory.
It is accepted that States can also claim
jurisdiction based upon the nationality
principle, under which a State may also extend its jurisdiction over its
nationals when they are outside its territory. Most European States whose legal
systems are based on the civil law extend their criminal law to cover their
nationals while abroad. States whose legal systems are based upon the English
common law usually extend their criminal laws to the actions of their nationals
while abroad only in exceptional cases.
Almost all States claim jurisdiction under the protective
principle, under which a State asserts jurisdiction over acts committed
outside their territory that are prejudicial to its security, such as treason,
espionage, and certain economic and immigration offences. It is accepted that
there is a narrow category of crimes over which States may assert jurisdiction
based upon the universality principle, under
which all States have jurisdiction
over offenders, no matter their nationality and no matter where the offence was
committed. There is universal jurisdiction over crimes such as genocide and war
crimes, giving any State the right to assume jurisdiction.
The most controversial basis for jurisdiction is
the passive personality principle,
which establishes jurisdiction based on the nationality of the victim. Very few
States attempt to extend the reach of their criminal laws to situations where there
only link to the crime is that their national was the victim.
Modern counter-terrorism treaties establish
jurisdiction among State Parties based on the presence of the offender within their territory. If a person who is
alleged to have committed the offence established in the treaty (e.g. hijacking
of an aircraft) is present in their territory, a State Party to the treaty is
under an obligation to take the persons into custody, and to either prosecute
them or extradite them to another State Party that has jurisdiction over the
offence.
If two or more States have jurisdiction over a
particular offence, they are said to have concurrent
jurisdiction. In such cases the State which is most likely to prosecute the
offender is the State which has custody over him.
One of the fundamental principles of
international law is that no State may exercise jurisdiction in a place under
the territorial sovereignty of another State. The police of one State cannot
enter the territory of another State to arrest a person who has committed a crime
in their State. Also, if a crime takes place in the territorial sea of a
coastal State, no State other than the coastal State my intercept and arrest
the ship carrying the offenders.
States enter into bilateral treaties to provide
for the extradition of alleged
offenders from one State to another. The sending of an alleged criminal to
another State for investigation or prosecution in the absence of an extradition
treaty is referred to as rendition. This word was made famous
by the practice of the Bush administration in sending alleged terrorists to
third States for interrogation and/or torture.
2.
Immunities
from Jurisdiction
The principle of sovereign equality of States
requires that the official representatives of one State should not be subject
to the laws of another State. Therefore, the law of the sea provides that
warships on the high seas are subject only to the jurisdiction of the flag
State. Further, warships may never by intercepted and boarded by another State,
even if they commit acts contrary to the right of innocent passage and the laws
and regulations of the coastal State.
However, if a warship violates the right of innocent passage, it may be
escorted out of the territorial sea by warships of the coastal State.
The principle of State immunity or sovereign
immunity provides that foreign sovereigns enjoy immunity from the jurisdiction
of other States. The principle of diplomatic immunity provides that the
diplomatic agents of the sending State have complete immunity from the criminal
jurisdiction of the receiving State. The immunity of the diplomatic agent is
not personal to the diplomatic, but belongs to the State. Therefore, the
immunity of a diplomat can be waived by the sending State. Also, the receiving
State has the right to expel any diplomatic agent from its country by declaring
them persona non grata.
Diplomatic relations law also provides that the
premises of an embassy or diplomatic mission as well as its records and
archives are inviolable. The authorities of the receiving State cannot enter a
foreign embassy without the express permission of the head of mission, even in
the case of an emergency.
G.
Status of the Seas,
Outer Space and Antarctica
That part of planet earth that consists of land
territory, including islands, is under the sovereignty of States. Their
sovereignty extends to the airspace above their land territory. It also extends
to a belt of sea adjacent to their coasts, called the territorial sea, subject
to the right of the ships of all States to exercise the right of innocent
passage through the territorial sea and the right of ships and aircraft of all
States to exercise the right of transit passage through and over straits used
for international navigation.
1.
High
Seas
The high seas are governed by several fundamental
principles. First, no State may purport to assert sovereignty over any part of
the high seas. Second, all States have the right to exercise the freedoms of
the seas, including freedoms of navigation, freedom of over flight, freedom to
lay submarine cables and pipelines, and freedom to conduct marine scientific
research. Freedom of fishing was a traditional high seas freedom but fishing on
the high seas is subject to restrictions as set out in the 1982 United Nations
Convention on the Law of the Sea. It is generally agreed that freedom of the
seas also includes the right of all States to use the high seas for military
purposes, including weapons testing and naval exercises.
Since no State can claim sovereignty over the
high seas, the territorial principle of jurisdiction is not applicable. The
general principle governing ships on the high seas is that they are subject to
the exclusive jurisdiction of the flag State. There are limited exceptions to
this principle, the most important of which applies to piracy. All States have
the right to intercept a pirate ship on the high seas and to seize the ship and
arrest the pirates. There are treaties creating other exceptions for
intercepting ships on the high seas if they are engaged in illegal activities
such as slave trading or drug trafficking.
2.
Exclusive
economic zone
Coastal States are permitted to claim an
exclusive economic zone (EEZ) of up to 200 nautical miles from the baselines
from which the territorial sea is measured. The EEZ is neither under the sovereignty
of the coastal State or part of the high seas. It is a specific legal regime,
in which Coastal States have the rights and jurisdiction set out in UNCLOS
(United Nation Convention on the Law of the Sea), and other States have the
rights and freedoms set out in UNCLOS.
Coastal States have the sovereign right to
explore and exploit the natural resources of the sea and of the seabed and
subsoil in their EEZ. In other words, they have the exclusive right to the
fisheries and other living resources of the sea and to the oil and gas
resources of the seabed and subsoil. They also have such jurisdiction as is
necessary for them to exercise their sovereign rights, included limited
jurisdiction over marine scientific research and protection and preservation of
the marine environment.
Other States have the right to exercise high seas
freedoms in the EEZ of any State. With respect to jurisdiction over matters
outside of economic activities, the principles of jurisdiction governing the
high seas apply in the EEZ. In other words, outside of economic activities,
ships in the EEZ are subject to the principle that ships are subject to the
exclusive jurisdiction of the flag State.
3.
Deep
Seabed beyond the limits of national jurisdiction
Under the law of sea, Coastal States have a right
to claim an EEZ of out to 200 nautical miles from the baselines from which
there territorial sea is measured. Coastal States also have sovereign rights to
explore and exploit the natural resource of the seabed and subsoil on their
continental shelf. States with a broad continental shelf off their coasts may
claim sovereign rights to the resources of their continental shelf out to the
outer edge of the continental margin, to a maximum of 350 nautical miles from
the baselines.
The natural resources of the deep seabed beyond
the limits of national jurisdiction are governed by the principle of common heritage of mankind. No State may
claim or exercise sovereignty or sovereign rights over any part of this area or
its resources. All rights in the resources in the area are vested in mankind as
a whole. An International Sea Bed Authority (ISBA) has been established and it
acts on behalf of mankind as a whole to regulate the exploration and
exploitation of the natural resources of the deep seabed. No State or natural
or juridical person may appropriate any part of the area or its resources
except under the authority of the ISBA, which is based in Jamaica.
4.
Outer
Space
The law of outer space became an issue only after
the USSR launched a satellite into orbit around the earth in 1958 and began the
“space race” between the two cold war super powers, the USA and the USSR. The
two super powers also worked together with the international community to
establish legal principles governing the use of outer space. The principles
governing the use of outer space are similar to those that govern the high
seas. First, no State may purport to assert sovereignty over any part of outer
space. Second, all States have the freedom to use outer space for peaceful purposes.
Third, States on whose registry a space object is launched shall retain
jurisdiction and control over the space object and over any persons on board
the space object.
The 1979 Moon Treaty purports to declare the
natural resources of the moon and other celestial bodies the common heritage of
mankind. However, it has been opposed by the United States and several other
important space powers. Therefore, the principle that the natural resources of
the moon and other celestial bodies are the common heritage of mankind has not
become a principle of customary international law binding on all States.
5.
Antarctica
Official claims to sectors of the ice-covered
continent of Antarctica were made by seven States – Argentina, Australia,
Chile, France, New Zealand, Norway and the United Kingdom. A sector was also claimed by Admiral Byrd on
behalf of the United States, but the United States never officially adopted
Byrd’s claim, and refused to recognize the claims of the six claimant States.
In 1959 the seven claimant States, together with 5 other States whose
scientists had been conducting research in Antarctica (Belgium, Japan, South
Africa, the United States and the USSR) entered into the Antarctic Treaty. The
Antarctic Treaty “froze” the claims of the seven claimant States, and stated
that no new claims to sovereignty would be made. It also stated that Antarctica
should be used only for peaceful purposes. The Antarctic Treaty permits States
parties to conduct scientific research in Antarctica.
H.
Principles Governing
Relations between States
The general principles governing friendly
relations between States are set out in UN General Assembly Resolution 2625,
which was adopted without vote in 1970. It states the progressive development
and codification of the principles below would secure their more effective
application within the international community and would promote the
realization of the purposes of the United Nations.
UN Resolution 2625 elaborates on the following
seven principles:
(a) The principle that States shall refrain in
their international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any other
manner inconsistent with the purpose of the United Nations
(b)
The principle that States shall settle
their international disputes by peaceful means in such a manner that
international peace and security and justice are not endangered
(c)
The duty not to intervene in matters
within the domestic jurisdiction of any State, in accordance with the UN Charter
(d)
The duty of States to co-operate with
one another in accordance with the UN Charter
(e)
The principle of equal rights and
self-determination of peoples
(f)
The principle of sovereign equality of
States
(g)
The principle that States shall fulfill
in good faith the obligations assumed by them in accordance with the UN Charter
I.
Responsibility of States for Wrongful
Acts
The area of international law referred to as
“State responsibility” refers to the principles and rules for determining when a
State is responsible for breaching the international obligations it owes to
another State and the consequences of the breach. The general principle is that
a State is internationally responsible to other another State for its internationally wrongful acts.
A State commits internationally wrongful act when
conduct consisting of an act or omission;
(a)
is attributable to the State under international law; and
(b) constitutes a breach
of an international obligation of the State.
Therefore, if a dispute arises between two
States, the first question that is usually asked is whether the State whose
conduct is in question owed an international obligation to the other State
under either a treaty or under customary international law. The second question
is whether that obligation was breached by conduct consisting of either an act
or an omission that is attributable to the State.
The rules on attribution
are based on common sense. The conduct of an organ of the State is attributable
to the State. In its relations with other States, a State
acts through its official representatives, such as its Head of State, Prime
Minister or President, Minister of Foreign Affairs, Ambassadors, as well as
through government ministries and departments. The official acts of these
persons and organs are attributable to the State.
The conduct of private persons or private
entities is generally not attributable to the State. However, the conduct of a person or entity
empowered by the law of the State to exercise elements of government authority
is also attributable to the State. A State is in breach of an international
obligation when conduct attributable to it is not in conformity with what is
required by the obligation. A State may not rely on provisions of its internal
or domestic law as justification for failure to comply with an international
obligation.
The State responsible for the internationally
wrongful act is under an obligation to cease
the wrongful act if it is continuing. It is also under an obligation to
offer appropriate assurance and
guarantees of non-repetition, if circumstances so require. In addition, the
State responsible for the internationally wrongful act is under an obligation
to make full reparation for the
injury caused to the other State by the internationally wrongful act. Injury includes any damage, whether
material or moral, caused by the internationally wrongful act.
The forms
of reparation under international law are restitution, compensation and
satisfaction. The preferred form of reparation is restitution, which requires the State to re-establish the situation
which existed before the wrongful was committed. Insofar as the damage is not made good by
restitution, the State much pay compensation
to cover the financially assessable damage, including loss of profits insofar
as it is established. If the injury cannot be made good by either restitution
or compensation, the State must provide satisfaction,
which may consist of acknowledgement of the breach, an expression of regret, a
formal apology or another appropriate remedy.
The principles of state responsibility provide
that a State which preclude the wrongfulness of an act. They include:
a) Valid consent
by the injured State to the commission of the act
b) Self-defense
under Article 51 of the UN Charter
c) Force majeure
d) Distress
e) Necessity
f) Valid
counter-measure in respect of a previous wrongful act
A counter measure
is a form of self-help that is taken in order to induce a State which is
responsible for an internationally wrongful act to comply with its obligations.
A counter measure consists of the non-performance for the time being of
international obligations owing to the responsible State. An example of a
countermeasure would be the United States freezing all assets of Iran in US
banks in response to the takeover of the US Embassy in Iran in 1979.
There are several restrictions on the use of
counter measures. They cannot involve the use of force or be in violation of
obligations for the protection of fundamental human rights. Also, counter measures
are limited by the principle of proportionality, and must be commensurate with
the injury suffered, taking into account the gravity of the internationally
wrongful act, and the rights in question.
J.
Settlement of Disputes
States have an obligation to settle their
disputes by peaceful means. However, States are generally not under any legal
obligation to settle their disputes by resorting to an international court or
tribunal. A dispute cannot be referred to an international court or arbitral
tribunal with the express consent of the States concerned.
The ICJ is the chief judicial organ of the United
Nations and all members of the UN are automatically parties to the Statute of
the ICJ. The jurisdiction of the ICJ in “contentious disputes” between States
is subject to the principle of consent. It can obtain jurisdiction in three
ways:
(a) The States parties to a dispute may enter
into an ad hoc agreement to refer a
particular legal dispute to the court.
(b) States
can submit an “optional clause declaration” to the UN Secretary-General
declaring that they accept the jurisdiction of the ICJ over certain categories
of disputes with other States which have also filed an optional clause
declaration. This category of disputes is quite rare, as many States are not
willing to accept the jurisdiction of the ICJ in advance for wide categories of
disputes.
(c) Many international conventions contain
dispute settlement clauses called “compromissory clauses” allowing disputes
between States parties to the convention to refer disputes concerning the
interpretation or application of provisions of that convention to the ICJ by
one of the parties to the dispute. Some conventions allow States to “opt out’
of such compromissory clauses.
If a dispute between two States is decided by the
ICJ, the decision of the court is final and binding as between the parties to
the case. It is not binding on other
States. However, to the extent that the ICJ pronounces on issues of customary
law or treaty law, its judgment will be treated as an authoritative
interpretation of international law by many States. The ICJ also has advisory
jurisdiction. The UN Security Council and the UN General Assembly may request
advisory opinions on any legal question. The UN General Assembly may also
authorize other UN organs or specialized agencies to request advisory opinions
on legal questions arising within the scope of their activities.
QUESTIONS:
1.
What is a permanent population?
2.
Are the decisions of the ICJ
binding on State Parties? What about non-State Parties?
3.
Does the introduction of regional
travel documents (EAC passports) negate nationality under a country specific
passport?
4.
Define the following:
a.
Territorial sea
b.
Seabed
c.
Subsoil below the territorial sea
5.
What do the following terms mean
in circumstances of claim of sovereignty over territory:
a.
Discovery
b.
Occupation
c.
Prescription
d.
Cession
e.
Conquest
6.
What is the difference and
significance between depositing an instrument of ratification and depositing an
instrument of accession?
7.
State sovereignty trumps
principles of jus cogens. Discuss
8.
What is codification of
international law?
9.
What is the difference between
claiming jurisdiction under the territorial principle and based on the
nationality principle?
10.
Sources of international law are
hierarchical. Discuss
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